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[2016] VSCA 320
Court of Appeal (Vic)
2016-12-16
Maxwell P, Beach JA, Kaye JA
Original judgment source is linked above.
TORTS - Contribution - Contribution claims between tortfeasors - Tortfeasors were manufacturers and suppliers of asbestos thermal insulation - Exposure - Whether exposure to asbestos thermal insulation established - Inferences - Findings of exposure dependent upon inferences drawn from facts of general application - Causation - Whether causation established - Findings of causation dependent upon inference drawn from facts of general application - Whether trial judge erred in finding causation established.
EVIDENCE - Hearsay - Exceptions to hearsay - Whether statements made to doctors by unavailable witnesses were admissible to prove a person's exposure to asbestos - Revival of memory - Reading aloud parts of a document - Evidence Act 2008, ss 32(3), 63(2), 136 and 192(2).
LIMITATION OF ACTIONS - Statutory construction of s 24(4) of the Wrongs Act 1958 as it applied to torts committed on or before 31 December 1971 - Statutory construction of s 24(4) of the Wrongs Act 1958 as it applied to torts committed after 31 December 1971 - Wrongs Act 1958, s 24 - Limitation of Actions Act 1958, s 5(1)(d) - Wrongs Act 1972, s 3.
EQUITY - Contribution - Partners - Coordinate liabilities - Whether action for equitable contribution subsumed by statutory provisions providing for contribution between tortfeasors - Whether action for equitable contribution only available in cases where no statutory right of contribution available - Defences - Laches - Statutory time limit applied by analogy - Whether defence of laches available notwithstanding that action within time prescribed by a statutory time limit applied by analogy.
1 The respondent (formerly known as James Hardie & Co Pty Ltd, and to which we shall refer as 'James Hardie') was, for some decades before the 1960s, a substantial manufacturer of asbestos insulation products in Australia. Until 1964, it supplied those products in its own right to customers, including to the State Electricity Commission of Victoria ('SECV').
2 By a Deed of Agreement dated 24 September 1964 (the 'Partnership Deed'), James Hardie entered into a partnership with the two applicants, CSR Limited ('CSR') and Bradford Insulation Industries Pty Ltd ('Bradford'). The partnership was referred to as the Hardie-BI Company. By the terms of the agreement, James Hardie and CSR jointly manufactured and supplied a number of specified products which were various forms of asbestos thermal insulation ('ATI'). Under the Partnership Deed, Bradford was appointed the sole selling and distribution agent for the partnership.
3 Between September 1964 and May 1974 (the 'partnership period'), and pursuant to the Partnership Deed, James Hardie and CSR manufactured Hardie-BI products and Bradford distributed those products. The Hardie-BI partnership was terminated by a Deed of Dissolution dated 26 June 1974. Before, during and after the partnership period, work involving the installation, maintenance and removal of ATI was undertaken at a number of power stations and related facilities owned or operated by the SECV. During and after the partnership period, that ATI included Hardie-BI products.
4 Subsequently, a number of individuals who had worked at the SECV facilities, or their dependants, commenced proceedings against SECV, claiming damages in respect of respiratory conditions that they alleged had been caused by exposure to asbestos fibre released from ATI at the SECV facilities. The SECV settled those claims. By the terms of three General Settlement Agreements ('GSAs') entered into between James Hardie and the SECV in 1993, 2004 and 2007 respectively, James Hardie agreed to make contributions towards those settlements. The contributions by James Hardie were calculated in accordance with formulae set out in the GSAs. Neither CSR nor Bradford knew of the GSAs at the time they were entered into, or had any input into the negotiation of their terms or the settlement of any claims under them.
5 By the GSAs, James Hardie agreed to contribute to the SECV settlements for claims arising from asbestos exposure at seven specific SECV sites. James Hardie had supplied asbestos insulation products to each of those sites, either in its own right or as a member of the Hardie-BI partnership. In effect, under the GSAs, James Hardie paid contribution to the SECV based upon a formula which contained an attribution of 25 per cent responsibility to James Hardie for each claim. That formula did not purport to apply only to those claims that stemmed from an illness necessarily caused by fibres emanating from James Hardie product or Hardie-BI product. Rather, it required James Hardie to make the contribution, if the relevant claimant had suffered damage from likely exposure to asbestos fibres at one of the seven SECV locations within a certain timeframe.
6 In the present proceeding, James Hardie claimed contribution from CSR and Bradford on two legal bases. First, it claimed contribution against both CSR and Bradford pursuant to s 24 of the Wrongs Act 1958 ('Wrongs Act'). Secondly, James Hardie claimed equitable contribution against CSR based on its alleged coordinate liability as a former partner pursuant to ss 10 and 12 of the Partnership Act 1892 (NSW) ('Partnership Act'). James Hardie's claims were not for contribution to the whole of the amount paid to the SECV by it under the GSAs, as those amounts had not been limited to contribution in respect of injuries suffered by the claimants arising out of their exposure to asbestos fibres from the Hardie-BI products. Rather, James Hardie's claim against CSR and Bradford was limited to that proportion of the payments made by it to the SECV under the GSAs which was attributable to the exposure of those claimants to asbestos fibres from Hardie-BI products.
7 James Hardie claimed contribution in respect of the settlement sum that it had paid to SECV relating to 204 claimants. A large range of trades and occupations were represented among the claimants whose settlements were the subject of the proceeding. Ultimately, eight claimants were selected to be the subject of the decision at the trial. They included: contractor and employee laggers; electrician instrument makers; a fitter; a rigger; and a cleaner. The eight claimants were Mr David Alexander, Mr Hendrick (Hank) De Vries, Mr Stephen Benjamin, Mr Walter Reid, Mr Bruce Johnstone, Mr Jan Kracht, Mr Brian McGuire and Mr Keith Preston.
8 As the trial concerned James Hardie's claims in respect of those eight SECV claims, and there were both common and individual issues raised by them, CSR and Bradford filed a separate defence to the statement of claim in relation to each claimant. In respect of each claimant, CSR and Bradford accepted that:
(a) the claimant suffered the primary injury or condition alleged by James Hardie;
(b) with the exception of Mr Johnstone, the claimant's injury or condition was caused (in the legal sense) by exposure to asbestos fibre;
(c) if it was proved that the claimant's injury or condition was caused by exposure to asbestos fibre from Hardie-BI products, then to that extent such injury or condition was caused by the negligence of each of James Hardie, CSR and Bradford;
(d) the amount for which the SECV settled the claimant's claim represented a reasonable assessment of his loss and damage, although not a reasonable assessment of the extent to which that loss and damage was attributable to exposure to asbestos at the SECV facility; and
(e) CSR and James Hardie had a coordinate liability in respect of Hardie-BI products.
9 As a consequence of those concessions, the issues which remained for determination in relation to each claimant were:
(a) whether the claimant was exposed to asbestos fibre from Hardie-BI products used in the SECV facilities to which the GSAs applied;
(b) if so, what proportion of the amounts paid by James Hardie to the SECV under the applicable GSA (and associated cost) was attributable to James Hardie's potential liability to pay contribution to the SECV in respect of Hardie-BI products, as opposed to other products containing asbestos;[1]
(c) whether James Hardie was entitled to claim statutory contribution from CSR and Bradford pursuant to s 24 of the Wrongs Act. (This issue included the question whether James Hardie was precluded from claiming such statutory contribution as might otherwise have been available to it);
(d) whether James Hardie was entitled to claim equitable contribution against CSR in addition to, or in the alternative to, statutory contribution claims under the Wrongs Act;
(e) if yes to (d), whether James Hardie was precluded by the operation of s 24(4) of the Wrongs Act, applied by the doctrine of analogy, from recovering equitable contribution; and
(f) whether James Hardie was precluded by laches, waiver or acquiescence from recovering equitable contribution.
10 At the trial, the parties agreed, and the Court accepted, that the Court would make general findings of principle, but would determine James Hardie's case in respect of the eight claimants only. Directions would then be made for the disposition of James Hardie's claims in respect of the remaining 196 claimants. Accordingly, the judge heard general evidence in relation to all the claimants, and specific evidence in respect of each claimant.
11 There was no direct evidence of exposure. All eight claimants had died before trial. Only a few workers from the relevant period are now alive, and none were called to give evidence at trial regarding the nature of their work or their exposure to ATI at the various work sites. The proceedings by the respective claimants against SECV did not run to trial, but were settled after they had been issued. Thus, there was no material admitted into evidence in any previous court proceeding that was available.
12 As a result, James Hardie's claim was based on circumstantial evidence, to which we shall refer in more detail when considering appeal grounds 3 and 4. James Hardie adduced evidence from the following witnesses:
(a) Mr John Bradley Drewett. During the relevant period, Mr Drewett was employed by the SECV in various senior positions in finance, personnel, training and development. In the late 1990s, Mr Drewett was engaged as a consultant to the Victorian Managed Insurance Authority, which was responsible for managing the compensation liabilities of the SECV and its successors. In that capacity, Mr Drewett had prepared assessments, for each claimant worker, in the form of 'Occupational Exposure Assessments' ('OEAs'), which identified the probable cause of the worker's exposure to ATI. Mr Drewett prepared that assessment from documents and information available to him relating to each claimant. At trial, Mr Drewett's witness statement was tendered in evidence, and he gave viva voce evidence;
(b) Mr Bruce Hilton, an employee of Bradford during the relevant period, gave evidence by way of two witness statements;
(c) Mr Ron Hinton was, during the relevant period, employed as the manager of the Hardie-BI plant in Sydney. Two witness statements by Mr Hinton were tendered in evidence;
(d) Mr Enrico Amalfi, during the relevant period, worked as a delivery driver for Bradford. Mr Amalfi's witness statement was tendered in evidence;
(e) Professor Douglas Henderson, a pathologist, who has relevant expertise in asbestos-related disorders, including mesothelioma, gave evidence by the tender of two expert reports. He also gave viva voce evidence; and
(f) Professor Richard Fox, a physician specialising in haematology and medical oncology, gave viva voce evidence, and his report in relation to each of the claimants was tendered through him.
13 CSR and Bradford did not adduce evidence from any witness. Each party tendered a substantial number of documents, largely comprising business records relating to the construction and maintenance of the SECV facilities, and the materials possibly used during that construction and maintenance. Summaries of those documents were also tendered.
14 The nature of the claim made by James Hardie involved a large number of issues for determination by the judge, notwithstanding the concessions made by the applicants before and during the trial. In a detailed and thorough judgment, the judge dealt, with considerable care, with each of those issues.[2] With respect, his Honour's reasons for judgment are a model of order and clarity.
15 A number of the judge's conclusions were not the subject of the proceeding before this Court. We shall mention some of them in passing where necessary to explain the decisions which are in contention in this appeal. What follows is a summary of those decisions.
16 The first issue was whether the histories given by the various claimants to medical practitioners, as to their employment at SECV sites and their exposure to asbestos dust at those sites, were admissible to prove those facts. The judge held that the evidence was admissible pursuant to s 63(2)(a) of the Evidence Act 2008 ('Evidence Act'). The medical practitioners could not recall the interviews that they had conducted with the claimants, or the contents of those interviews. The judge gave James Hardie leave to, in effect, read the reports of the medical practitioners into evidence under s 32(3) of the Evidence Act.[3]
17 The next issue concerned the correct approach to the question of contribution. The judge considered that question, first, in relation to 'divisible' illnesses, such as asbestosis, and, secondly, in relation to 'indivisible' illnesses, such as mesothelioma and lung cancer. In respect of the divisible illnesses, the judge concluded that the correct approach was to identify the particular injury and damage sustained by the claimant as a result only of exposure to Hardie-BI asbestos fibre. The second step in the process was to determine what was just and equitable contribution by each party pursuant to s 24 of the Wrongs Act. In that respect, it was agreed between the parties that the appropriate contribution share would be 50 per cent in each case.[4]
18 In respect of indivisible illnesses, the judge determined, first, that the entitlement to contribution was to be assessed without regard to any need to 'divide' or 'apportion' the extent of the causal contribution which the Hardie-BI product made to the claimant's loss. If the Hardie-BI product had made an above-background causal contribution to a claimant's indivisible injury and damage, then each of the parties (Hardie and CSR-Bradford) would have an entitlement and liability to contribution in respect of that claimant. The joint liability of those parties was in respect of the whole of the claimant's damage, which had been already capped at the 25 per cent contribution payment made by James Hardie to SECV. The judge further considered that the question of the amount to be contributed by CSR was to be determined by a comparison of the responsibilities of the parties before the Court, disregarding the possible wrongdoing of other tortfeasors not before the Court.[5]
19 The judge then considered the question of the entitlement of James Hardie to contribution, first, under s 24(4) of the Wrongs Act, as it applied to torts committed before 31 December 1971, and, secondly, as it applied to torts committed after that date.
20 In respect of the claims to which the pre-1972 version of s 24(4) of the Wrongs Act applied, the judge concluded that no action for contribution was maintainable by James Hardie against CSR and Bradford, unless James Hardie had been served (as a party to the action) with a writ issued by the relevant claimant, and, in addition, James Hardie had sought contribution from CSR and Bradford within the time specified in s 24(4) for doing so.[6]
21 In respect of the claims to which s 24(4) of the Wrongs Act applied after 31 December 1971, the judge determined that James Hardie's right to seek contribution became barred under s 24(4)(a)(i) if:
(a) the claimant's writ against the SECV was filed on or before 4 November 2002, and James Hardie had not commenced its contribution claim before the expiry of six years from that date; or
(b) the claimant's writ against the SECV was filed after 4 November 2002, and James Hardie had not commenced its contribution claim before the expiry of three years from that date.[7]
22 The judge then considered the question of the entitlement of James Hardie to equitable contribution against CSR, based on their coordinate liabilities as partners in the Hardie-BI partnership between 1964 and 1974. The claim was based in part on ss 10 and 12 of the Partnership Act. Although CSR accepted that it was subject to such liability, the judge considered it necessary to determine the existence and nature of that liability. After reviewing the relevant authorities in detail, his Honour concluded that, in the alternative to its claim against CSR and Bradford under the Wrongs Act for contribution, James Hardie also had a recognisable right of action against CSR based on equitable principles.[8]
23 His Honour then considered the question of the time limit governing the claim for equitable contribution. His Honour noted that there was no limitation period prescribed for such a proceeding under the Limitation of Actions Act 1958 ('LAA'). However, s 5(8) of that Act permitted the Court to apply a provision of s 5 to such a claim by the doctrine of analogy. The judge concluded that, by analogy, the applicable limitation period was that prescribed in s 5(1)(a) of the LAA, as the equitable action in contribution corresponded to an action maintainable at law based on an implied contract between the partners to contribute equally to partnership liabilities for wrongs. Thus, his Honour concluded that the applicable limitation period was six years from the date when James Hardie paid its contribution to SECV under the GSAs.[9]
24 The judge further concluded that, for claims for equitable contribution brought within that six year period, CSR would also be entitled to rely on the equitable defence of laches, if there was an unreasonable delay in bringing the contribution claim once a cause of action had accrued, and the delay had given rise to prejudice in the form of changed circumstances.[10]
25 The judge then applied those principles to the claims made by James Hardie in respect of each of the eight claimants. His Honour's conclusions were set out in a helpful table, as follows:[11]
Wrongs Act claim
26 CSR and Bradford seek leave to appeal from his Honour's decision. The application for leave to appeal contains 10 grounds. In turn, James Hardie seeks leave to appeal from certain aspects of the judge's decision, its application for leave containing five grounds. In effect, the applications and cross-applications relate to five principal issues.
27 The first issue concerns the admissibility of the exposure histories in the medical reports. By ground 1 of the application, CSR and Bradford contend that the histories were inadmissible as evidence of the facts stated by the claimants to the medical practitioners. Alternatively, they contend that, if the asbestos exposure histories were admissible for that purpose, the judge should have exercised the discretion in s 136 of the Evidence Act to limit their use.
28 The second issue is whether the circumstantial evidence was sufficient to support the inferences drawn by the judge that each of the claimants (except Mr De Vries) was exposed to asbestos dust emanating from Hardie-BI products at the SECV facilities. CSR and Bradford contend that it was not open to his Honour to draw those inferences. Alternatively, they contend, his Honour gave undue weight to the evidence of the claimants' possible exposure to asbestos from Hardie-BI products, and insufficient weight to the evidence of their possible exposure to asbestos from non-Hardie-BI products. Specific complaint is made in relation to the five claimants in respect of whom the judge found in favour of James Hardie.[12] In addition, CSR and Bradford contend that the judge erred in finding that the evidence established that Mr Johnston's lung cancer was caused by exposure to asbestos.
29 The third issue concerns the limitation periods for statutory contribution claims under the 1958 and 1972 versions of the Wrongs Act respectively.[13] By ground 4 of the cross-application, James Hardie contends that the judge erred in concluding that the 1958 version of s 24(4) of the Wrongs Act precluded it from bringing contribution claims in respect of torts committed before 31 December 1971. By ground 5 of the cross-application, James Hardie contends that the judge erred in holding that the 1972 version of s 24(4) of the Wrongs Act precluded it from bringing a contribution claim in respect of a tort committed after 31 December 1971, unless that claim was brought within the time prescribed by s 24(4)(a)(i).
30 The fourth issue relates to the availability of the equitable claim for contribution. By ground 5 of the application, CSR and Bradford contend that the judge erred in concluding that James Hardie had a recognisable right of action against CSR based upon equitable principles. By ground 3 of the cross-application, for its part, James Hardie contends that the judge erred in holding that James Hardie did not have such a right to equitable contribution in circumstances where its rights of statutory contribution under the Wrongs Act were not barred.
31 The fifth issue concerns the defence of laches. By ground 1 of the cross-application, James Hardie contends that the defence of laches was not available to CSR in answer to James Hardie's claim based on the coordinate liability of CSR. By ground 2 of the cross-application, James Hardie further contends that, even if the defence were available, it should not have succeeded in respect of the claims relating to Mr Reid and Mr Preston, as CSR did not lead evidence of any prejudice to it arising from the delay in the institution of the proceedings for contribution.
32 In these reasons, we shall deal with those five issues in the order in which we have just outlined them. Further, like the judge, we will only refer to CSR when referring to the two applicants for leave to appeal, unless the context requires us to mention Bradford specifically or to differentiate between the two.[14]
33 As already mentioned, James Hardie sought to have the medical reports admitted as proof of the facts stated by the respective claimants. His Honour made a provisional ruling, indicating that he was inclined to admit the representations made by those claimants, as recorded in the medical reports, into evidence as an exception to the hearsay rule. The parties thereafter proceeded on that basis. In his judgment, the judge confirmed his provisional ruling.
34 Before turning to his Honour's reasons for that decision, it is necessary to set out, briefly, the effect of the evidence in question. James Hardie relied on the medical reports of Professor Richard Fox, who had interviewed each of the eight claimants. James Hardie also relied on reports of Dr Roger Woodruff, who had interviewed Mr Johnstone and Mr McGuire.
35 In each report, Professor Fox recorded the work history given to him by the claimant. That history, typically, recorded a number of background matters, including the claimant's trade, the dates upon which he commenced work at particular facilities, and the activities in which the claimant was engaged that had brought him into contact with asbestos insulation products.
36 Initially, James Hardie sought only to tender the written medical reports. After objection on behalf of CSR, Professor Fox was called to give evidence. He said that he had asked each claimant a series of questions in order to ascertain his work history. Professor Fox made handwritten notes. Within a day or so of the interview, he dictated his report from those notes. On occasion, the claimant would be accompanied by his spouse or other family member. Ordinarily, that other person did not provide much detail of the work, but assisted in clarifying the sequence of different jobs and locations. Importantly, Professor Fox stated that he had no independent recollection of anything stated to him by any of the individual claimants. Indeed, he had no recollection of any of the interviews, except that he recalled meeting Mr Benjamin in Canberra.
37 The medical reports of Dr Woodruff were also tendered. It was agreed that the judge should accept that, as with Professor Fox, Dr Woodruff's reading of his reports would not have revived any actual memory of what the claimants had told him.
38 James Hardie contended at trial that the evidence of what was said by a claimant to a medical practitioner was admissible pursuant to s 63(2)(a) of the Evidence Act. As the medical practitioners had no independent recollection of matters recorded in the medical reports, James Hardie relied on s 32(3) of the Evidence Act, which gives the Court a discretion to permit a witness to refer to a document in order to try to revive a memory about a fact or opinion contained in the document and to read aloud from that document.
39 A difficulty concerning the application of s 32 was that, in each case, the medical report had been tendered without the doctor reading it to the court under s 32(3) of the Act. For the purpose of the argument, however, CSR agreed that the judge could act on the basis that each doctor had in fact read aloud the contents of the work history sections of his reports. CSR submitted that the evidence derived from the medical reports did not constitute first-hand hearsay for the purpose of s 63(2) of the Act but, rather, was second-hand, or more remote, hearsay.
40 The judge rejected CSR's argument. His Honour said:
If the relevant section of the medical report was read aloud to the court, it would then be treated as if the doctor had recounted, in his own words, the representations that had been made to him by the personal injury claimant he had interviewed. Had any doctor been able to do that from memory in the witness box, it would have amounted to first hand hearsay and been admissible under s 63(2)(a). When the doctor is allowed to do the same thing by reading the contents of the medical report when it did not revive actual memory, the evidence has the same character. I agree, with respect, with the learned author of Cross on Evidence who wrote:
The contents of the document thus apparently comes into evidence - not directly since the document is not marked as an exhibit and is not part of the evidence in its own right, but as part of the witness's oral evidence.[15]
41 The judge further ruled that, if an application had been made to him under s 32(3) of the Evidence Act, he would have given Professor Fox leave to use his report to try to revive his memory. His Honour ruled that, under s 192 of the Evidence Act, he should have given leave to Professor Fox, and to the other medical practitioners, to read aloud as part of their evidence so much of the medical report as related to those facts.
(1) The learned trial judge erred in admitting the asbestos exposure histories contained in the medical reports of Professor Fox and Dr Woodruff into evidence for the purpose of proving sub-group claimants' exposures to asbestos products ... and [the learned trial judge] ought to have held that the asbestos exposure histories were inadmissible because:
(a) they were excluded by operation of the hearsay rule in s 59(1) of the Evidence Act;
(b) they did not comprise first-hand hearsay within the meaning of s 62(1) of the Evidence Act and, accordingly, they did not fall within the exception to the hearsay rule in s 63(2)(a) of the Evidence Act; and
(c) section 32 of the Evidence Act does not have the effect of converting second-hand or more remote hearsay into first-hand hearsay such that s 63(2)(a) of the Evidence Act may render such hearsay admissible.
43 Counsel for CSR noted that the exception to the hearsay rule contained in s 63 of the Evidence Act only applied to 'first-hand' hearsay, as defined in s 62(1) of the Act. He submitted that the histories recorded in the medical reports were not first-hand hearsay but, rather, were second-hand or more remote hearsay. Counsel submitted that s 32 of the Act did not provide a mechanism by which a witness might give evidence that was otherwise inadmissible under the Act. In support of that proposition, he noted that the provisions relating to the admissibility of hearsay evidence were contained in ch 3 of that Act, which was concerned with the admissibility of evidence. On the other hand, s 32 fell within ch 2 of the Act, which dealt with matters relating to the adducing of evidence.
44 Counsel accepted that the common law did permit a witness to give evidence as to a matter previously recorded by the witness, notwithstanding that at the time of giving evidence the witness did not have any memory of the facts contained in the record. In that way, the common law did not treat evidence given by a witness who recited their recorded memory as hearsay. Instead, it was treated as part of the witness's oral testimony. The submission for CSR was that the common law created a legal fiction in treating such evidence in that way. Counsel pointed out that the artificiality of the fiction has been recognised by some courts, which have described evidence given in that way as constituting oral testimony by a witness about the contents of a written document. Counsel referred to R v Naidanovici,[16] Gillespie v Steer[17] and R v Keogh [No 2].[18]
45 Counsel submitted that the Evidence Act did not continue the fiction. Rather, it contained a specific definition of hearsay evidence in s 59. Counsel noted that the exceptions to the hearsay rule contained in pt 3.2 div 2 of the Act (including s 63) were confined to 'first-hand' hearsay. Thus, it was submitted, the reports of the medical practitioners were not admissible to prove the facts stated by the respective claimants. The fact that the medical practitioner was allowed to tender, or read, those parts of the medical reports to the court, under the mechanism provided by s 32 of the Act, did not alter the status of the contents of the reports.
46 In response, counsel for James Hardie referred to the earlier common law cases, including the decision of the Full Court of this State in R v Alexander and Taylor.[19] In that case, evidence given by a witness of facts that the witness had recorded in a contemporaneous document was regarded as part of the oral testimony of the witness, notwithstanding that the witness had no memory of the facts contained in the document. Accepting that the common law indulged in a fiction in that regard, counsel argued that s 32 of the Evidence Act had not changed the law. In particular, counsel submitted, it would be quite artificial to draw a distinction between, on the one hand, 'refreshed memory' and, on the other hand, 'recorded memory', in respect of evidence given by a witness who had used a document to 'revive' his or her memory under s 32 of the Act. The distinction between a witness's refreshed memory and recorded memory was often blurred and unclear. Thus, it was submitted, s 32 of the Evidence Act was not intended to alter the long-standing common law principle.
47 We are concerned here with the nature of evidence given by a witness about a previous representation made to the witness, where the witness has no recollection of the representation and has to rely on a contemporaneous record of it. For convenience we shall refer to that evidence as 'evidence of recorded memory'.
48 The submissions raise two questions in particular. The first question is whether evidence given by a witness of a recorded memory of particular facts is necessarily hearsay evidence by that witness of those facts. (If it were, evidence of recorded memory of a reported fact would be second-hand hearsay.) The second question is whether, if that evidence is hearsay, s 32 enables the witness to give the evidence notwithstanding that it would otherwise be inadmissible.
49 For the reasons which we shall set out below, we consider that the first question is to be answered in the negative. That is, evidence by a witness as to recorded facts is not hearsay for the purposes of the Evidence Act. As a result, evidence of recorded memory of a reported fact is firsthand hearsay. Were the position otherwise, s 32 could not operate to make the evidence admissible.
50 It is, of course, clear that the evidence of the medical practitioners could only have been admitted to prove the facts stated to them by the claimants if that evidence constituted 'first-hand' hearsay, as defined in s 62 of the Evidence Act. It is convenient to set out the relevant provisions of pt 3.2 of the Act relating to hearsay evidence.
51 Section 59(1) provides the fundamental rule against the admissibility into evidence of hearsay evidence. It states:
Evidence of a previous representation made by a person is not admissible to prove the existence of a fact that it can reasonably be supposed that the person intended to assert by the representation.
Part 1 of the Dictionary to the Act defines 'previous representation' to mean:
a representation made otherwise than in the course of giving evidence in the proceeding in which evidence of the representation is sought to be adduced.
A reference in this Division ... to a previous representation is a reference to a previous representation that was made by a person who had personal knowledge of an asserted fact.
53 The exception ultimately relied on by James Hardie was that provided by s 63(2)(a). Section 63(1) provides that the section applies in a civil proceeding if a person who made a previous representation is not available to give evidence about an asserted fact. The condition in s 63(1) was satisfied in this case, as none of the claimants were available to give evidence.
54 Section 63(2)(a) then states:
(2) The hearsay rule does not apply to -
(a) evidence of the representation that is given by a person who saw, heard or otherwise perceived the representation being made ... .
If the medical practitioner had been able to recall the facts stated by the claimant to him, the practitioner would have been able to give evidence as to those matters, and that evidence would have been admissible under s 63(2)(a) as the medical practitioner was 'a person who heard the representation being made'.
55 Since, however, the medical practitioners could not recall the histories given to them by any of the claimants, James Hardie sought to rely on s 32 of the Act, which provides:
32 Attempts to revive memory in court
(1) A witness must not, in the course of giving evidence, use a document to try to revive his or her memory about a fact or opinion unless the court gives leave.
(2) Without limiting the matters that the court may take into account in deciding whether to give leave, it is to take into account -
(a) whether the witness will be able to recall the fact or opinion adequately without using the document; and
(b) whether so much of the document as the witness proposes to use is, or is a copy of, a document that -
(i) was written or made by the witness when the events recorded in it were fresh in his or her memory; or
(ii) was, at such a time, found by the witness to be accurate.
(3) If a witness has, while giving evidence, used a document to try to revive his or her memory about a fact or opinion, the witness may, with the leave of the court, read aloud, as part of his or her evidence, so much of the document as relates to that fact or opinion.
(4) The court is, on the request of a party, to give such directions as the court thinks fit to ensure that so much of the document as relates to the proceeding is produced to that party.
56 We would uphold CSR's submission that s 32 does not bear on the question of admissibility. It is a machinery provision. A grant of leave under s 32(3) does not enable a party to adduce, through a witness, hearsay evidence which does not fall within any of the statutory exceptions to the hearsay rule.
57 The critical question, therefore, is whether the evidence by the medical practitioners of their recorded memories of the medical histories was admissible as firsthand hearsay. More particularly, the question is whether in relying on what they had recorded of the 'representations' made to them by the claimants, they were 'giving evidence of' those representations, within the meaning of s 63(2)(a).
58 As already noted, evidence given by a witness as to his or her recorded memory was admissible at common law as part of the witness's oral testimony, and was not regarded as hearsay evidence. A brief review of the cases demonstrates that the common law characterisation of that evidence was deeply embedded in trial practice at the time of the passing of the Evidence Act 1995 (Cth), which was substantially the basis of the Evidence Act in Victoria when it was enacted in 2008.
59 The case law on this topic can be traced at least to the earlier part of the 19th century. Two decisions of the Court of King's Bench in that period adequately illustrate the evolution of the principle. Maugham v Hubbard & Robinson[20] concerned an action in assumpsit for money had and received. The plaintiff's witness had no recollection of having received the money the subject of the claim. Having been permitted by the court to do so, the witness referred to a cash book and stated that, while he still had no recollection of the transaction, he had no doubt that he had received the money. The cash book was not admissible in evidence, as it had not been stamped.
60 The evidence was held admissible. Lord Tenterden CJ stated:
In order to make the paper itself evidence of the receipt of the money it ought to have been stamped. The consequence of its not having been stamped might be, that the party who paid the money, in the event of the death of the person who received it, would lose his evidence of such payment. Here the witness, on seeing the entry signed by himself, said that he had no doubt that he had received the money. The paper itself was not used as evidence of the receipt of the money, but only to enable the witness to refresh his memory; and when he said that he had no doubt he had received the money there was sufficient parole evidence to prove the payment.[21]
61 In The King v The Inhabitants of St Martin's, Leicester,[22] a question arose concerning proof of the letting of premises. A witness, who had no recollection of the transaction, was permitted by the Court of Sessions to refer to an entry in a book kept by him. On appeal, the Court of King's Bench Division held that the evidence of the witness was admissible as part of his testimony. Lord Denman CJ stated:
The witness's statement was, that he had no memory of these things, but, on reading the entry, he had no doubt that the fact really happened. The Sessions permitted him to look at the entry for the mere purpose of refreshing his memory, and that was quite right.[23]
62 More than a century later, a similar question arose in the Court of Criminal Appeal in R v Bryant & Dickson.[24] In a prosecution for fraud, the prosecution called a witness who had kept a book relating to the booking in and out of vehicles that were the subject of the case. The witness was not able to specifically recall the transactions relevant to the case but, by looking at the book, was able to confirm that the particular bookings occurred on the dates recorded. The Court held that the evidence was admissible:
It was said that the evidence was inadmissible because the prosecution were putting in the book and not relying on the evidence of the witness. It is precisely because circumstances of that sort constantly occur in human affairs that the law allows a person who has kept a record to look at it for the purpose of refreshing his memory. 'Refreshing his memory' is an inaccurate expression in some respects, but on most occasions it enables the witness to speak to something which his memory cannot carry from a record made at the time. Ever since the law of evidence has been what it is, it has been perfectly legitimate for a witness to say: 'I have my own record; it was my duty to keep it; I did keep it accurately according to the best of my powers, and I can say from looking at my record that an event happened on a certain day, and on another occasion, either on that day or some other day, another event happened'. It was not necessary for the witness in the present case to say: 'Now I see this, I remember that vehicle going out'. If she could do so because of some particular circumstance, that would be refreshing her memory in the strict sense of the word, but it was not necessary to go as far as that to make her evidence admissible.[25]
63 The decision of the Full Court in Alexander and Taylor[26] affirmed the application of the common law principle in this State. In that case, the applicants were charged with robbing one McCartney. In the course of his evidence in chief, McCartney gave evidence as to an incident in which the two applicants set upon him, assaulted him, kicked him, and robbed him of a carton of beer. In cross-examination, it emerged that McCartney had little independent recollection of the event, other than that he had been involved in a fight. He was unable to recall any of the circumstances of the fight, or that the carton of beer had been removed by the applicants. His evidence in chief had been based on the statement that the police had taken from him, and which he had read before giving evidence.
64 On the appeal, it was submitted that the jury should have been instructed that the evidence given by McCartney was inadmissible because of the failure of the prosecution to produce his witness statement. The Full Court rejected that submission, stating:
It is of course well established by decided cases, including the authorities to which [counsel for the applicants] referred, that a witness may properly give evidence of events of which he no longer has any independent recollection, simply by reference to some written record which he made or adopted shortly after those events occurred and at a time when he did recall them, provided that the witness is prepared to swear to the accuracy of the record. Indeed unless this were allowed, it would often be impossible to prove the occurrence of past events, such as the details of a routine commercial transaction, except in cases falling within special statutory provisions such as s 55 of the Evidence Act 1958. A case of this sort, where a witness has no independent recollection, is to be distinguished from the more common case where a witness uses a contemporaneous note or the like simply to revive or refresh an actual memory of the events of which he gives evidence.[27]
65 The Full Court then considered whether, in such a case, the document, containing the recorded memory ought to have been produced. The Court expressed the view that the document should have been provided to counsel for the accused but that there was no reason why it needed to be formally produced in open court.[28] The Court left open the question whether a party calling a witness who had no independent recollection had the right at common law to tender in evidence the record from which the witness spoke.[29] The Court noted that in Naidanovici[30] the New Zealand Court of Appeal had been divided on that question. We shall turn to that case shortly.
66 The decision in Alexander and Taylor was recently followed in R v Anders.[31] The trial in that case had taken place before the commencement of the Evidence Act. The accused was charged with stalking. The complainant had participated in a video audio recorded interview ('VATE' interview) in which he described the circumstances of the offence. At the conclusion of that interview, he made a statement that he had told the interviewer the truth in the VATE tape. In evidence, the complainant acknowledged that he no longer had any recollection of the events, but he adopted his own statement, made at the conclusion of the VATE tape, that he had told the interviewer the truth.
67 On appeal it was submitted that this did not constitute a proper or effective adoption of the contents of the recording. The Court rejected the submission, stating:
This submission cannot be sustained. The law permits a witness who has no independent recollection of the events to which they are asked to depose to give evidence in accordance with, and in reliance upon, a statement or record made or adopted by him or her at a time sufficiently contemporaneous with the events when the witness could still recall those events. It is not necessary that the record revive the witness's recollection.[32]
68 As indicated earlier, there are differences of judicial opinion as to whether, when a witness gives evidence as to a recorded memory, the document containing the recorded memory can or should be admitted into evidence. In Naidanovici, the Court of Appeal of New Zealand was divided on that point. Gresson P considered that the recorded evidence was a species of evidence given by a witness refreshing his or her memory and that, accordingly, the use of the record did not make the document evidence.[33] North and Cleary JJ were of the contrary view, holding that where a witness had no independent memory of the transaction, the document containing the recorded memory provided the best evidence of the matter and should be admitted.[34] In Keogh,[35] Blue J expressed a similar view, namely, that where a witness whose memory was not revived by looking at a previous account nevertheless verified the record, the record was admissible in evidence, and the witness's oral testimony was the proof of the authenticity and accuracy of the record.[36]
69 In neither case was any doubt cast on the common law view that a witness's evidence as to recorded memory forms part of that witness's oral testimony. In Gillespie,[37] Sangster J appeared to go further, stating that in such a case the witness was telling the court something about the document, and it was the document that would tell the court 'whatever it does say about the facts'.[38] To the extent that that case departed from the common law approach, it appears to stand, somewhat, on its own.[39]
70 As a matter of logic, there is a distinction between, on the one hand, evidence reflecting the refreshed memory of a witness, and, on the other hand, the recitation by a witness of the witness's recorded memory. A number of cases to which we have referred fall into the latter category. In practice, however, the line between the two categories of 'remembered' evidence can be quite indistinct or obscure, so that the distinction becomes quite illusory. In the common case in which a witness has refreshed his or her memory from a statement outside court, the witness's evidence can be an inextricable mixture of both refreshed memory and recorded memory.
71 In many cases, it would be difficult, if not impossible, for the court, or the witness, to be able to identify those parts of the evidence given by the witness that fall into either particular category. Thus, in practice, the distinction between evidence that consists of refreshed memory, and evidence that is the product of recorded memory, can become quite artificial. The practice of the common law, of treating both species as part of the witness's oral evidence, is less a fiction and more a pragmatic acknowledgement of reality, informed by the law's understanding of the vagaries of the processes of human memory and recollection.
72 It is therefore not surprising that in a number of cases the courts have referred to the artificiality of distinguishing between refreshed memory and recorded memory. One hundred and fifty years ago, Hayes J in Lord Talbot de Malahide v Cusack[40] observed that the concept of refreshing the memory of a witness was particularly inaccurate. His Lordship stated:
In nine cases out of ten the witness's memory is not at all refreshed; he looks at it again and again and he recollects nothing of the transaction; but seeing that it is in his own handwriting he gives credit to the truth and accuracy of his habits, and though his memory is a perfect blank he nevertheless undertakes to swear to the accuracy of his notes.[41]
73 More recently, in Keogh,[42] Blue J of the Supreme Court of South Australia observed:
In real life, a witness who has been shown an earlier record may find it difficult to distinguish between having her or his memory revived (actual memory) and remembering making the record and reconstructing a memory of the events recorded in it (reconstructed memory). It may be that the witness has a combination of actual and reconstructed memory for different events recorded, different aspects of an event recorded or an indivisible amalgam of actual and reconstructed memory. Whether a witness can distinguish between actual and reconstructed memory will depend on the time between making the record and giving evidence, the importance to the witness of the subject matter, the quality of the witness's memory and other factors.[43]
74 That, then, is the background, or landscape, in which s 32 was included in the Evidence Act. It is acknowledged that the Act did not simply adopt or incorporate common law principles and doctrines. In a number of significant respects, the Act abrogated, altered, adjusted or supplemented existing common law approaches to the law of evidence. Nevertheless, it is relevant that s 32 was included in the Evidence Act in the context of the common law's longstanding treatment of a witness's testimony as to recorded memory as part of that witness's oral evidence, and not as an exception to the hearsay rule.
The position under the Evidence Act
75 As we have said, the question of admissibility turns on whether the exception in s 63(2)(a) applied. Accordingly, the question for determination is whether, in reading out that part of his report which recorded a representation made by a claimant, the medical practitioner was 'giving evidence of the representation', within the meaning of that sub-paragraph. It was not in doubt that the practitioner was, in each instance, 'a person who heard the representation being made'.
76 It was common ground on the appeal that the medical practitioner would properly have been viewed as 'giving evidence of the representation' if, in the witness box:
(a) the practitioner was able to recall it unaided; or
(b) the practitioner's recollection of the representation was revived or refreshed by reading the relevant report.
The argument for CSR, however, was that if the practitioner had no actual recollection, and reading the report did not revive any recollection, the practitioner was not 'giving evidence' when he read out the report. This was not oral evidence, it was said, but documentary evidence.
77 There is nothing in the definition of hearsay evidence in s 59 of the Evidence Act, or in s 63, that would indicate an intention to depart from the long-standing common law position that evidence reciting recorded memory is not hearsay evidence. Nor is there any indication in s 32 that the legislature intended such a departure, so as to introduce a distinction between refreshed and recorded memory. To the contrary, a consideration of the provision is, we consider, decisive that the common law approach has been retained.
78 As counsel for CSR emphasised, s 32 appears in div 3 of the Evidence Act, which is entitled 'General rules about giving evidence'. This section contains the 'general rules' about when and how a witness may 'in the course of giving evidence'[44] use a document to try to revive his or her memory 'about a fact'.
79 There is nothing in s 32 that distinguishes between, on the one hand, giving evidence from refreshed memory, and, on the other hand, giving evidence of recorded memory. Subsection (1) precludes a witness, in the course of giving evidence, from using a document 'to try to revive his or her memory' about a fact or opinion unless the court gives leave. Subsection (2) provides the matters that the court is to take into account in determining whether to give such leave. None of those factors preclude the giving of leave in a case in which the witness has no present recollection, and thus, if given leave, would give evidence based on recorded recollection. Subsection (2) is the gateway to the entitlement of a witness, under sub-s (3), with further leave of the court, to read aloud the document that is used to try to revive the witness's memory.
80 Section 32(3) is of critical importance, in our view. It provides that where, pursuant to leave granted, the witness has 'used a document to try to revive his or her memory about a fact'[45] the witness may (again with leave)
read aloud, as part of his or her evidence, so much of the document as relates to that fact.[46]
81 There is nothing to suggest that this provision is capable of applying only when the attempt to revive memory has been successful.[47] On the contrary, on the plain meaning of the provision all that is required is that the witness should have used the document 'to try to revive his or her memory'. This is unsurprising, in our view, as it would be a task of great difficulty for a judge to decide, in any given case, whether what had occurred was an actual 'revival' of an earlier memory or the short-term creation of a fresh memory of the content of the document.
82 Counsel for CSR accepted, in answer to questions from the Court, that s 32(3) could properly apply in a case where the witness's attempt to revive his or her memory had failed and where the witness had no memory at all of the fact in question. Their argument remained, however, that the availability of this procedure could not make the evidence of the medical practitioners admissible in proof of the recorded facts. But, as we have sought to explain, s 32 does not go to admissibility, which is (relevantly) governed by s 63(2). Rather, it authorises a method for 'giving evidence' of a recorded fact.
83 The scheme contained in s 32 is broadly similar to the circumstances in which, at common law, a witness is permitted to give evidence by referring to, or reading, a statement in order to supplement or refresh that witness's memory. There is no indication in s 32 of an intention by the legislature to confine or restrict the previous practice of permitting a witness to use a statement for the purposes of giving evidence as to recorded memory, as distinct from refreshed memory. It is understandable that the legislature did not seek to incorporate such a dichotomy into s 32, in light of the artificiality of the distinction to which we have just referred.
84 Relevantly, the section of the original report of the Australian Law Reform Commission dealing with this topic militates against the importation into s 32 of the dichotomy (between refreshed and recorded memory) contended for by the applicants. In paragraph 615 of its report, entitled 'Reviving Memory in Court', the Commission stated:
Proposals are advanced to deal with reviving memory in court by the reading of documents. These proposals are developed from existing law but introduce a greater degree of flexibility.[48]
85 CSR's contention - that s 32 only permits the use of a previous document to refresh memory, and not to introduce recorded memory - is not only contrary to the evident intention of the section but, if adopted, would produce anomalies in practice that could not have been intended by the legislature. As counsel for James Hardie pointed out, that construction of s 32 would produce the incongruous situation that, if a witness was able to commit to memory the contents of a statement made some time earlier (as the witness McCartney did in Alexander and Taylor), the witness would be able to give such evidence, whereas if another witness, not blessed with such an acute memory, could not do so, that witness would be precluded from referring to and using such a statement in the course of giving evidence in court.
86 It follows from what we have said that, when the medical practitioner (having tried and failed to revive his memory by reading the medical report) reads aloud the relevant part of the report containing the claimant's representations, he is 'giving evidence of' those representations, just as he would be if he did so from his own recollection. The manifest purpose of s 32(3) is to assimilate those two things, just as the common law did.
87 Accordingly, the evidence given by each medical practitioner of the histories was not hearsay evidence of the histories. When the practitioner related to the Court the facts contained in the history given by the claimant, that constituted first-hand hearsay (and not more remote hearsay) as to those facts. The evidence was therefore admissible in each case, pursuant to s 63(2)(a) of the Evidence Act, to prove the facts stated to the medical practitioner by the claimant. For those reasons, ground 1 must be rejected.
88 Ground 2 contends that the judge should have concluded that the use of the medical reports to prove the work histories of the claimants might be unfairly prejudicial to the applicants, or misleading. He should therefore have exercised the discretion under s 136 of the Evidence Act to limit their use to non-hearsay purposes.
89 The judge did not specifically address s 136. Rather, in giving leave to the medical practitioners to 'give evidence' of the contents of their reports under s 32(3), the judge addressed the matters prescribed in s 192(2) of the Evidence Act.[49] Ultimately, the appeal submissions were directed to that aspect of the judge's reasons.
90 The judge noted that the defendants had argued that it would be unfair to permit the evidence to be given, because they would not be able to test by cross-examination the accuracy of the accounts given by the claimants or to test the veracity and accuracy of the record taken by Professor Fox, since he had no memory of the interviews. None of Professor Fox's original handwritten notes were available.
91 His Honour said that he was persuaded by the importance of the evidence to admit it. The circumstances of the interviews with Professor Fox, and the methods that he had adopted in recording what he had been told, provided a 'relatively high degree of confidence' in the accuracy of the material. The judge considered that the inability of the applicants to cross-examine the original claimants or Professor Fox could be taken into account in determining the weight to be attributed to the evidence.[50]
92 The appeal submissions essentially rehearsed the same propositions as were advanced before the judge. They relied on the fact that Professor Fox had no independent recollection of his consultations with the claimants; and the fact that Professor Fox gave evidence of his practice of obtaining the work history from 'the collective memory' of the family members present. (We interpolate that that description of Professor Fox's evidence is not entirely accurate. Rather, as earlier indicated, Professor Fox stated that he gained some assistance, on some occasions, from the wife of a claimant.)
93 The decision by the judge to give leave under s 192 of the Evidence Act was essentially a discretionary decision. The applicants did not contend that the judge took into account an irrelevant circumstance, or that his Honour failed to take into account a relevant matter. Nor are we persuaded that the decision was not reasonably open to the judge.[51] Accordingly, the applicants have failed to identify any appealable error.
94 Importantly, the factors that might be taken into account under s 136 were, to all intents and purposes, the same as those taken into account by the judge in granting leave under s 192. It follows that, notwithstanding that the judge did not address s 136, no error has been demonstrated.
The inferences drawn from the circumstantial evidence
95 Grounds 3, 4 and 6-10 concern the question of whether the circumstantial evidence adduced at trial was sufficient to support the inferences drawn by the judge that each of the claimants (except Mr De Vries) was exposed to asbestos dust emanating from Hardie-BI product. Grounds 3 and 4 deal with the general findings, as follows:
(a) there was no direct evidence of such exposure;[52]
(b) there was insufficient circumstantial evidence from which such inferences could be drawn;[53]
(c) there was a significant body of evidence of possible exposure to asbestos from non-Hardie-BI products;[54] and
(d) there was a finding that the weight attributed to the asbestos exposure histories in the medical reports could be limited where those medical reports might be critical in a particular determination.[55]
96 Grounds 6-10 deal with the exposure findings made by the judge in respect of individual claimants: Mr Johnstone (ground 6), Mr Benjamin (ground 7), Mr Alexander (ground 8), Mr Kracht (ground 9) and Mr McGuire (ground 10). In ground 6, CSR also makes complaint about the judge's conclusion that Mr Johnstone's exposure to Hardie-BI product was a cause of his lung cancer.
97 As noted earlier, few of the 204 claimants to which this proceeding relates are now alive, and none were called to give evidence at trial. Their damages claims were never run at trial, but were settled after being issued. As the judge observed, the evidence of the actual work of any individual claimant was relatively scant and the evidence concerning the presence and location of asbestos lagging, its type and prominence was fragmented.[57] At trial, in order to attempt to meet the difficulty created by the lack of direct evidence of exposure to Hardie-BI product, James Hardie sought to persuade the Court to infer from circumstantial evidence that a particular claimant was probably exposed to Hardie-BI asbestos fibre at a relevant SECV site.
98 The judge described James Hardie's approach as being
to marry together a range of contemporaneous business records, some contemporaneous documents produced for the relevant court proceeding, and some other witness evidence
James Hardie had invited his Honour to draw the necessary inferences from that material. The judge represented that methodology in the form of three equations, about which CSR makes no complaint in this Court.
(1) SECV power station construction and maintenance schedules + SECV (and contractor) purchase orders + Hardie-BI supply records = probability of presence of Hardie-BI product at power station.
(2) Presence of Hardie-BI product at power station + period of worker's employment at power station + nature of worker's trade + typical duties of that trade = probability of some exposure to Hardie-BI product.
(3) Probability of some exposure to Hardie-BI product + nature and timing of particular illness + expert pathology opinion as to probable causal connection = probability that exposure caused illness.[58]
100 The judge discussed the evidence that implicated asbestos fibres in the causation of various diseases. The judge identified the first category of conditions as malignant disease, being mesothelioma, carcinoma of the lung and other malignant neoplasms. He identified the second category as a group of 'benign' disorders such as asbestosis, pleural plaques and some other pleural conditions. The judge then discussed the use of the terms 'indivisible' and 'divisible' to differentiate the two categories of disorders. Mesothelioma and lung cancer were each said to be examples of indivisible diseases, whereas asbestosis and pleural plaques were said to be examples of divisible diseases.
101 As the judge noted, for present purposes the importance of the distinction between the two categories of disease lies in the attribution of any particular episode of exposure to asbestos (above mere background exposure) as a cause of the particular condition.[59] For indivisible diseases, the evidence was that all exposure to asbestos was causally relevant, but for divisible disorders the Court needed to decide the proportionate role that a relevant exposure played in the cause of the relevant condition.[60] For indivisible disorders, James Hardie contended that it was unnecessary for it to show more than that the relevant claimant was exposed to Hardie-BI fibre of at least a sufficient amount to have made a necessary, incremental contribution to the development of the illness.
102 The judge said that, as there was no longer any means of discovering by direct evidence whether a particular claimant was exposed to Hardie-BI asbestos, it was necessary to look at a number of factors to determine whether an inference of relevant exposure could be drawn.[61] The judge described the relevant factors as follows:
a. trade
Some trades were more likely to bring a worker into contact with asbestos than others. Obviously, a 'lagger' - a worker whose role it was to install or remove insulation around pipes and in boilers - was most likely to be exposed to airborne asbestos fibres. Depending on the type of insulation product being handled, the process of either installing or removing insulation could liberate a higher or lower amount of fibre. If, for example, KLite blocks were being installed on pipes with bends and angles or obstacles to negotiate, the calcium silicate blocks had to be cut at an angle for fitting purposes. Cutting was done with handsaws or mechanical saws. That process created a lot of dust which contained a percentage of amosite asbestos fibre.
A different trade - say, an instrument maker or a trade assistant to an instrument maker - may only have intermittently encountered an atmosphere with asbestos fibre, if at all, depending on whether asbestos insulation needed to be removed in order for an instrument to be installed or removed. It would also depend on whether that instrument maker was present when or soon after the asbestos insulation was disturbed.
Similarly, a cleaner or a rigger might be heavily exposed to asbestos fibre if working in an environment where insulation (say blocks or sections) had been cut leaving debris that could still be disturbed - even, in some cases, drifting down onto workers below. Or they may only be intermittently or rarely exposed to asbestos fibre if not working in and around insulation installation or removal areas or in periods of time when asbestos insulation product was not being disturbed.
But, the incidence of exposure for many of the trades working amongst those who worked more directly with asbestos fibre would be difficult to predict. It could readily be said that they might on occasions have been exposed to asbestos fibre: not that they must have been or, at least, not regularly.
The most comprehensive resource for information about a particular trade, and the nature and likely degree of exposure to airborne asbestos fibre associated with that trade, was supplied through Mr Drewett's OEAs for each claimant. As described in further detail below, Mr Drewett's statement, incorporating his OEAs, was permitted to be tendered subject to relatively few objections.
b. direct or indirect exposure
The degree of likelihood that a person's asbestos disease can be attributed to Hardie-BI asbestos, as distinct from other manufacturer's product, may be influenced by whether inferred exposure to Hardie-BI product was direct or indirect.
As previously explained, direct exposure is the inhalation of asbestos fibre in the industrial environment where the asbestos insulation is situated. Indirect exposure occurs through a worker, who him or herself being directly exposed, carries the asbestos fibre on clothing, boots etc into the home thus causing household members to come into contact with the dust which they inhale.
Common sense would suggest that the quantity fibre to which a household member may be indirectly exposed will generally be less than that of the directly exposed worker. But the extent of a household member's potential exposure will itself be impacted by the number of workers in the household who worked at an SECV facility; the trades that those workers worked in; the places each different worker worked in; the duration of time over which the workers carried the dust into the home; the particular tasks the household member had with the clothing; and the extent to which the person's asbestos condition can be sensibly explained by exposure to any other source, and so on.
c. period
Where the supply and construction records for the particular facility indicated the probable installation of Hardie-BI product from a specific point in time, it is obviously relevant to know whether the claimant was present at the facility thereafter, or only before. It is also relevant to know the duration of a claimant's work at a particular facility at which Hardie-BI fibre can be inferred to have been installed. Clearly, the longer a claimant worked at a facility, the higher the degree of probability that he or she encountered airborne asbestos fibre liberated from Hardie-BI product.
But it is also highly relevant to know whether the period of the worker's presence at a facility was during a construction phase or only a maintenance phase. It stands to reason that the disturbance of asbestos fibre into the atmosphere was likely to have occurred in greater volume when insulation was being installed in bulk, rather than removed and replaced on a piece-meal basis.
d. type of asbestos insulation product
It may be of relevance to know whether the claimant worked with, or was likely to have worked with, different kinds of asbestos insulation product. Products that were cut; that were sprayed on as dry fibre; or which required mixing from dry powder form with water to make cement - were each more likely to cause exposure to airborne fibre than, say, uncut sheets or boards. Likewise, asbestos insulation made from an amphibole fibre had a greater causal potency than of the non-amphibole type.
e. exposure to asbestos fibre from other manufacturers
In assessing the probability that a particular claimant's illness was caused by exposure to Hardie-BI product, it would seem logical to know the worker's exposure over time to asbestos fibre from all sources. Logically, it would seem to be more difficult to infer the necessary causal role of Hardie-BI fibre in respect of a worker exposed to asbestos fibre from many different sources over a long period of time than in respect of a worker who was only ever exposed to fibre from Hardie-BI product. But, that statement itself is somewhat controversial in relation to 'indivisible' injuries.
f. nature of illness
In terms of the attribution of causal significance to Hardie-BI product in respect of a given worker's illness, the nature of that illness may be of importance. Bearing in mind Professor Henderson's opinion that, with the malignant forms of illness, all exposure (above background) is causative, exposure to asbestos of other origin is not necessarily so significant. However, for non-malignant forms of illness the same principle does not apply so that it is at least relevant in respect of those illnesses to evaluate the relative degrees of exposure to all product to form a view of causation (ie liability).
But even if liability can be assumed, the question of the degree of responsibility of the Hardie-BI partners for a worker's damage consequent upon an illness, vis-à-vis other contributors, may require an assessment of the relative amounts of exposure. Whether that is so for both divisible and indivisible illnesses remains a live issue.
g. interval between exposure and onset of illness
A necessary ingredient for finding a causal relationship between an identified (or inferred) exposure to Hardie-BI fibre and a worker's illness, is the existence of a minimum gap in time before onset of the illness. An onset that occurs too close to the posited exposure event will not be attributed to that event because of the known latency period between exposure and the manifestation of illness in relation to different illnesses. Professor Henderson has examined each claimant against that criterion.[62]
104 The judge then recorded concessions made by CSR in the pleadings and in final submissions. In relation to each claimant, CSR conceded that:
(a) he had suffered the injury or condition alleged;
(b) except for Mr Johnstone, his injury or condition was caused by exposure to asbestos fibre;
(c) if it was proved that the asbestos exposure that caused his condition was exposure to fibres from Hardie-BI partnership product at one of the seven SECV locations, then James Hardie and CSR each negligently caused the injury or condition; and
(d) if, and to the extent that, James Hardie was able to establish that his injury or condition was caused by exposure to asbestos fibre from partnership product at one of the seven SECV sites, James Hardie and CSR were each liable in respect of the damage suffered by the claimant as a result of that exposure within the meaning of s 24(1)(c) of the Wrongs Act.[66]
105 Next, the judge noted CSR's positions at trial in respect of four issues relevant to exposure, as follows:
(a) first, CSR admitted that during the partnership period, work was undertaken at each SECV facility involving the installation, maintenance and removal of thermal insulation consisting of asbestos blocks, pipe sections, insulating cement (or composition) and millboard (collectively defined as 'ATI'), but also alleged that the thermal insulation products included other asbestos products such as cord, rope, jointing and limpet that were not supplied by the partnership;
(b) secondly, CSR admitted that each claimant (or worker who was a family member of an exposed claimant) may have come into contact with asbestos dust and fibre, liberated during the process of the installation, maintenance or removal of ATI, while working at the specified SECV facility in the period alleged in the claimant summaries derived from Mr Drewett's OEAs, but emphasised that the specific particulars of any such exposure remained unknown, and pointed to opportunities for the relevant person to have been exposed to non-Hardie-BI asbestos at the SECV facilities or at other places;
(c) thirdly, CSR admitted that claimants may have inhaled asbestos dust and fibre as a result of that work (either directly or indirectly from a family member's work clothes), but emphasised that the extent would depend on the circumstances and that such circumstances remained unknown, and pointed to the opportunities for inhalation from other asbestos, as previously mentioned; and
(d) fourthly, CSR did not admit that any particular claimant had inhaled Hardie-BI asbestos dust and fibre, and said further that, even if Hardie-BI asbestos dust and fibre was inhaled, the claimant would also have inhaled asbestos dust and fibre which was not from Hardie-BI product.[67]
As already noted, the defendants admitted each sub-group claimant's asbestos-related illness or disease and, except in the case of Johnstone, that it was caused by exposure to asbestos fibre. Details concerning the amounts and dates of the relevant SECV settlement for each claimant, and of the James Hardie contribution, were all admitted.
Proof that each sub-group claimant was actually exposed to Hardie-BI asbestos dust and fibre is, as earlier mentioned, dependent in the first instance upon an inference, from a range of sources of evidence, of the probable presence of Hardie-BI asbestos thermal insulation at a facility at which that person (or, if indirectly exposed, family member) worked at a relevant time. That inference is assisted to a degree by the defendants' admission that specific types of thermal insulation (ie block and pipe sections, cement, millboard) were present, in so far as it can be established that the Hardie-BI partnership probably supplied those types of products.
Two types of evidence have been tendered by James Hardie on the exposure issue in relation to the sub-group claimants:
(a) 'Generic' evidence - that is, evidence in relation to the:
(b) 'Specific' evidence - that is, direct evidence of the sub-group claimants' actual exposure to product containing asbestos (not necessarily partnership product) at SECV sites during the partnership period.[68]
107 The judge then summarised the generic evidence concerning the supply of Hardie-BI product to the SECV facilities, the roles which individual claimants performed, and 'their typical exposure profile'.[69] He then turned to the specific evidence relied on to establish the exposure of each claimant to Hardie-BI product. The judge said he would combine that specific evidence with any inferences that could be drawn from the generic evidence.[70]
108 The generic evidence consisted of a vast array of documentation, which was collected in approximately 40 court books and ran to over 14,000 pages. Only a very small fraction of this material was put before this Court. As a result, this Court was not in the same position as the trial judge in relation to what conclusions should, or should not, be drawn from the entirety of the evidence. Senior counsel for CSR accepted that this was so.
109 In his Honour's view, proof that Hardie-BI ATI products were actually supplied to the relevant SECV sites during the partnership period required the marrying up of two sources of information. First, there were the documents which showed what SECV was doing at its power station, what it ordered and when, and which companies it used for insulation services. The second source consisted of records showing to whom, and at what locations, Hardie-BI product was supplied. Additionally, there was some general evidence given by Mr Drewett in relation to this topic.
110 As the judge noted, it was from a combination of these sources that James Hardie invited the inference to be drawn that Hardie-BI product was used at the construction stage of two SECV facilities (Hazelwood and Yallourn W) and for maintenance purposes at the other sites (including also at Hazelwood and Yallourn W after they were commissioned). The judge noted the contention that the greatest amount of asbestos dust and fibre would likely have been released in the construction phase of a facility, as compared to the amount released during the maintenance phase. The judge then set out the following details for those sites that were pertinent to the sub-group claimants:
111 As the judge said, it was readily apparent that the ATI installed in sites other than Hazelwood and Yallourn W - all having been constructed and commissioned before the commencement of the Hardie-BI partnership - must necessarily have been non-Hardie-BI product (although, possibly, product made by James Hardie alone).[71]
112 The judge then conducted a detailed analysis of the generic evidence covering the presence of Hardie-BI product at SECV sites, and the roles of workers employed in various capacities (lagger, rigger, fitter, cleaner, instrument maker and other trades), before setting out his general conclusions about the risk of exposure of particular classes of worker to Hardie-BI ATI products. It is necessary to set out these conclusions in full, as they have importance both generally in respect of all claimants and in relation to the individual claimants.
Hardie-BI enjoyed a very substantial portion of the Australian asbestos thermal insulation market during the partnership period (as did James Hardie in the pre-partnership period). It was not necessarily a monopoly, because there were other suppliers also active. However, it was probably the dominant supplier by a healthy margin.
The Hardie-BI partnership appears to have exclusively supplied a number of asbestos thermal insulation products that went by the following product descriptions:
Asbestos products that may have been made by the Hardie-BI partnership and its competitors included:
Asbestos products that appear not to have been supplied by the Hardie-BI partnership but only by other manufacturers were webbing tape, rope lagging and limpet.
Both in respect of materials used in the construction phase of the two power stations built during the Hardie-BI partnership period and the maintenance phases for all of the power stations it is likely that Hardie-BI ATI was the dominant insulating material that was used. That is especially so in respect of pipes where blocks and sections made from calcium silicate foundation became the favoured form of insulation as time progressed.
The power stations constructed during the Hardie-BI period (Hazelwood and Yallourn W) were significantly more likely to contain large amounts of Hardie-BI ATI than those power stations built prior to the period (Yallourn and Morwell). That probability follows because, with respect to the newly constructed plants, the entire plant needed to be insulated from the outset and, by the mid-1960s, Hardie-BI's K-Lite and High Temp products were more and more being used in preference to other forms of insulation. However, it is also apparent that some of the materials used in the early phases of stages 1, 2 and possibly even 3 of the construction of the Hazelwood Power Station were sourced from James Hardie before the partnership period.
The insulation of large, flat surfaces around the boilers often used millboard product, or at least included it within the suite of other insulation materials. As millboard was made by a number of manufacturers such materials may well have been made by Hardie-BI or other manufacturers.
Before the commencement of the partnership period, James Hardie was also a significant supplier of ATI to the power station industry. Therefore, there was a strong degree of likelihood that its ATI was used prominently in the construction of power stations built before the 1960s - including Yallourn and Morwell. But it was equally likely that the replacement of ATI during the maintenance and repair for those sites built before the 1960s also featured prominent use of James Hardie ATI.
Because of the increasing preference for the use of the calcium silicate product, K-Lite (manufactured by the Hardie-BI partnership), over the older 85% magnesia product as time progressed from the mid-1960s through to the 1970s, the incidence of the use of Hardie-BI product in construction and maintenance probably increased relative to the use of products of other manufacturers.
The likelihood that Hardie-BI product was used in very substantial amounts in the construction of the Hazelwood Power Station is greater than in respect of the construction of Yallourn West. That is so because the evidence suggests that, at least in respect of the boilers, the head contractor at Hazelwood (Babcock and Wilcox) used Hardie-BI Super High Temp product almost exclusively. Babcock and Wilcox were not the head contractors at Yallourn West. Further, Hardie-BI's own partnership records indicate that while sales of its product were still being made to Yallourn West in the early 1970s, those sales were below what was expected.
From the typical profile given of the various trades represented amongst the eight sub-group claimants it appears that, in very general terms, the risk of the worker being exposed to asbestos fibre was in this order (from greatest to least): laggers; riggers; cleaners; fitters; instrument makers; electricians and tremors.
So, again, in very general terms, it could be concluded, for example, that throughout the partnership period laggers were always at a high degree of risk of inhaling Hardie-BI product working at SECV sites. However, those laggers who worked at Hazelwood in the construction phase of any of the eight units would likely have even greater risk of exposure than laggers who worked only in a maintenance capacity. Yet further, those laggers who worked in a construction phase at Hazelwood in the latter part of the 1960s when the use of K-Lite was at its most dominant could reliably be assumed to have the highest prospect of exposure to Hardie-BI product amongst all categories.
By contrast, for example, an instrument maker who only worked at, say, Morwell in the early part of the Hardie-BI partnership period may not easily be assumed to have been exposed to Hardie-BI product either at all or to any significant degree. Obviously, there are a range of possibilities between those two poles depending upon trade, place of work and time.[72]
CSR's submissions about the judge's general exposure findings
114 CSR's ultimate submission was that the judge was wrong to find on the balance of probabilities that any claimant had been exposed to Hardie-BI partnership product. CSR accepted that there was circumstantial evidence from which the possibility of exposure to asbestos from Hardie-BI product could be inferred, but contended that there was also a 'great body of circumstantial evidence from which the possibility of exposure to asbestos from non-Hardie-BI product could be inferred'. CSR submitted that, in view of his Honour's findings that the evidence of the claimants' work was 'scant' and that critical evidence concerning the presence and location of asbestos lagging, its type and prominence was 'fragmented', a finding that any individual claimant was exposed to asbestos emanating from Hardie-BI product was no more than 'mere surmise or speculation'.
115 CSR did not cavil with the judge's general findings on exposure (set out above) but submitted that the significance of those findings was debatable, in view of the generality of the language which his Honour used. According to senior counsel for CSR, what was important was 'the precise terms' in which his Honour expressed himself. Counsel referred to the judge's finding[73] that it was 'likely that Hardie-BI ATI was the dominant insulating material that was used' and said:
Again, the simple point here is, accepting that that is a finding on the balance of probabilities, what exactly does it mean? There is a likelihood? Is it probable? It is a little unclear, but that Hardie-BI ATI was the dominant insulating material that was used and ...: is it dominant in the sense of 60 per cent, 70 per cent, 80 per cent, 90 per cent ... and when you come to apply that to an individual claimant it makes a big difference if the claimant is walking into a power station in which there is 95 per cent Hardie-BI material versus only 50 per cent or 55 per cent. There is just a generality which makes individual inferences more difficult to draw.
116 CSR highlighted what was said to be the 'inconclusive nature' of the judge's general findings. According to the submission, the judge's choice of language was telling because it reflected 'the difficulty of the exercise'. Senior counsel for CSR said:
What one might expect, if inferences are drawn confidently, is an expression in the conventional terms that 'on the balance of probabilities, I find that there was a substantial proportion, possibly more than, probably more than 80 per cent, of asbestos material in a particular premises from Hardie-BI'.
117 Additionally, CSR contended that Mr Alexander's case exemplified the danger of drawing exposure conclusions from the general evidence in relation to individual claimants. With respect to Mr Alexander, the judge said:
In Mr Alexander's case I have the considerable benefit of his detailed affidavit. It causes me to modify some inferences that would otherwise have been drawn from the generic evidence, although it supports others. His account given to the various doctors were consistent with that set out in his affidavit.[74]
118 According to the submission, since a detailed affidavit in Mr Alexander's case had modified conclusions that his Honour would otherwise have drawn from general material, the same might have happened in respect of any other claimant if such a detailed affidavit had existed. Moreover, it was submitted, the general exposure evidence could not be relied upon if it led to conclusions different from those which would be made if there were detailed evidence concerning an individual claimant.
119 As we have said, CSR's attack was directed not at the judge's general exposure conclusions but at his use of those conclusions as part of his reasoning to conclusions about the exposure of individual claimants to relevant amounts of Hardie-BI asbestos product. In view of that attack it is now necessary to look at the specific findings made by his Honour in relation to the exposure of individual claimants.
Claimants' exposure to Hardie-BI partnership ATI
120 The judge first identified what was common ground between the parties in relation to each claimant. He then dealt with the generic evidence, so far as it could be applied to an individual claimant, and then addressed the specific evidence relating to that claimant. It is not suggested that the judge erred in making any finding or conclusion in relation to the detail of any claimant's employment.
121 We set out below the employment histories, as they were during the potential Hardie-BI exposure period, of those claimants who are the subject of an individual ground of appeal. The judge concluded that each of the claimants had had a material exposure to Hardie-BI ATI.
Yallourn West S 1
123 As to Mr Johnstone's exposure to Hardie-BI ATI, the judge said:
Upon the generic and specific evidence described, in my opinion there is little doubt that Mr Johnstone was exposed to a considerable amount of asbestos fibre and dust over a period of about four years from mid-1973 to mid-1977, and then continuing thereafter but at a lesser degree of exposure until at least December 1979. At Yallourn and Morwell Power Stations when he was required to re-lag pipes, or was in the vicinity of laggers who were re-lagging pipes, it is probable that the ATI he was exposed to was or included Hardie-BI product. However, it is also probable that the ATI he was exposed to while the insulation was being removed was non-Hardie-BI product. That product likely included a portion of product made by James Hardie alone.
Insofar as he was required to remove lagging to gain access to instruments at Hazelwood or Yallourn West Power Stations, or was a bystander whilst the lagging was removed, there was a significant degree of likelihood that such ATI was Hardie-BI product. That is also the case in relation to the lagging that was used to replace the insulation that was removed. However, where he had to gain access to instruments on boilers and turbines where limpet had been used, for example, he would have been exposed to non-Hardie-BI insulation.
Overall, it is my opinion that it was likely his exposure to Hardie-BI ATI would have exceeded his exposure to non-Hardie-BI material, including material made by James Hardie alone.[75]
125 As to Mr Benjamin's exposure to Hardie-BI ATI, the judge said:
In my opinion the whole of the evidence establishes the probability that Mr Benjamin was exposed to some asbestos dust released from Hardie-BI product while working as an instrument maker at Yallourn West and Hazelwood Power Stations. An inference can be drawn from all of the evidence that he would at least have been exposed as a bystander while pre-formed Hardie-BI lagging was removed and replaced on pipes to enable him to access instruments. At least some of the lagging to which he was exposed, in particular the lagging that was being removed to enable access to instruments, would as a matter of probability have been Hardie-BI product supplied before December 1971, especially at Hazelwood.
Given that his first six months (to July 1971) at Yallourn power station was in training, it is likely that the vast majority of any of his exposure to ATI was after December 1971, although there may have been some exposure before that date. But having regard to the relatively short duration and that he was probably only exposed (if at all) as a bystander, I could not be satisfied as a matter of probability that he was exposed, specifically, to Hardie-BI asbestos before December 1971 although it seems likely he would have had some light to moderate exposure to ATI in his training and early work as an apprentice. It remains possible that in his second stint of work at Yallourn power station for five months in 1972/1973 he may have been exposed to Hardie-BI product that had been supplied before 31 December 1971, but I could not draw any such inference as a matter of probability.
I also find it is probable that he was exposed to some ATI product of other manufacturers, not only at the three power stations but also in his later employments at other locations and with other employers. Overall, it is very difficult to estimate what relative degree of exposure he may have had to Hardie-BI and non-Hardie-BI asbestos other than to say that each was likely to have been of some significant degree.[76]
127 As to Alexander's exposure to Hardie-BI ATI, the judge said:
As a result, I consider that Mr Alexander's overall exposure to asbestos was mostly to non-Hardie-BI product at Yallourn and Morwell Power Stations, including to product made by James Hardie alone. There may have been some exposure to Hardie-BI product but the occasions and extent of such exposure was likely to be modest. The situation was similar at Hazelwood. I infer he probably had some exposure to Hardie-BI product but it would have been of a relatively small quantity compared to other sources. But, significantly, the Sindanyo and Zelemite to which he had most exposure were both of a chrysotile variety whereas the exposure to Hardie-BI asbestos was to the more potent amphibole fibre, amosite. Applying a broad brush approach, I would conclude that, overall, the causal significance of Mr Alexander's exposure to Hardie-BI asbestos was likely to have been approximately the same as his exposure to non-Hardie-BI asbestos, some of which would have been product of James Hardie alone.
As for when he was probably exposed to Hardie-BI product, I think it would have been both before and after December 1971, the relative proportions of which are difficult to say. Determining the probable dates of the commission of the tort related to these exposures in Mr Alexander's case has its complexities.[77]
129 As to Mr Kracht's exposure to Hardie-BI ATI, the judge said:
Given the nature of his trade and the duration of his employment at Morwell Power Station, I consider that Mr Kracht's exposure to ATI generally in that period was likely to be heavy. For reasons I have already given, I am satisfied that a causally significant degree of exposure would have been to Hardie-BI material. The evidence from Professor Fox has not in itself been determinative of that conclusion as the generic evidence alone would have persuaded me of probable exposure. However, I also consider that a significant amount of the material to which he was exposed would have been to non-Hardie-BI material, including ATI made by James Hardie alone.
I also consider there was a probability of some asbestos exposure in his post-SECV work, particularly for example, while working as a boilermaker in the construction phases of the gas plant at Longford and the power station at Bougainville. There is no evidence that the ATI at those facilities was Hardie-BI material.
Overall, except to say he was probably exposed to both, it is not possible to venture a conclusion on the relative proportions of his exposure to Hardie-BI and non-Hardie-BI material.[78]
130 With respect to Mr McGuire, although it was not admitted by CSR, the judge appears to have accepted that the details of his relevant employment were:
131 As to Mr McGuire's exposure to Hardie-BI ATI, the judge said:
The description Mr McGuire gave to his doctors, in particular to Professor Fox, leads me to infer that Mr McGuire used substantially, if not predominantly, Hardie-BI product during his work as a lagger at the Yallourn W Power Station. The product he described conforms to the pre-formed calcium silicate based material which only Hardie-BI was producing. Without that evidence I could not have been satisfied of a causal contribution of any Hardie-BI product to his mesothelioma. Despite the arguments raised by the defendants, which I have considered, I see no reason not to attach weight to their accounts.
Accordingly I find as a matter of probability that Mr McGuire's exposure to the ATI that caused his mesothelioma was very substantially exposure to Hardie-BI product. There is little if any suggestion of any other ATI likely to have been responsible.
It would appear that his exposure to Hardie-BI asbestos fibre probably straddled the pre and post 31 December 1971 period, whilst he was 18 years of age. Although his statement of claim nominates certain dates of employment, there is no evidence that supports that precise period. I will assume roughly half of his exposure was before 31 December 1971 and the other half afterwards. Because he appears to have been involved in lagging in the construction phase of Yallourn West for periods of only months either side of 31 December 1971, it is a fair inference that the majority of the product he applied and to which he was exposed was product supplied before that date (assuming it was being supplied some weeks or months before actually being required). Accordingly, the majority of the contribution claim for the payment made to him would be governed by the limitation that applied before amendments made by the 1972 Act.[79]
132 As we have said, CSR makes complaint about the conclusions drawn by the judge in relation to each claimant's alleged exposure to Hardie-BI product. The uncertainty of the whole process is said by CSR to be exemplified by 'evidential lacunae' with respect to the following matters:
133 Although CSR identified one or more of these 'evidential lacunae' in relation to each claimant, it did not assert that the judge erred in relation to the identification of any of the facts from which he ultimately drew an inference of exposure. Nor did CSR submit that there was any relevant point of distinction (so far as exposure was concerned) between claimants. It was not put by CSR that the facts relating to any one claimant were different from those relating to the other claimants so as to preclude a relevant inference of exposure, which was capable of being drawn in respect of one claimant, from being drawn for another claimant. Rather, CSR's case was a more global one. The assertion was that, whatever was known about any claimant and his work, it was not possible to infer that that claimant had been relevantly exposed to Hardie-BI ATI product.
134 His Honour gave detailed and careful consideration to a vast array of evidence and issues before coming to his conclusions on the exposure of individual claimants. As we have already noted, his Honour was invited to draw inferences that individual claimants were exposed to Hardie-BI asbestos product and that that exposure was a cause of the relevant condition. This Court is now asked to examine those inferences.
135 This is, of course, an appeal by way of rehearing.[80] Three observations made recently by this Court bear repeating:
First, while an inference is a conclusion based on established facts, nevertheless the interplay between the finding of a particular fact or facts, and the drawing of a conclusion, is not entirely discrete. The drawing of an inference, or reaching of a conclusion, is necessarily affected by precisely how and for what reasons a judge may have accepted, or rejected, a particular piece of evidence which is important to the drawing of that inference or conclusion.
Secondly, in a civil proceeding, a judge may only draw an inference or reach a conclusion in favour of a party on whom the onus of proof lies, if that inference or conclusion is the more probable inference or conclusion available on the facts of which the judge is satisfied. The question whether an inference is more probable than another may be affected by the judge's view of particular facts relied on in support of any competing inference, or of facts relied on to contradict the inference ultimately formed by the judge.
Thirdly, the advantages enjoyed by a trial judge, in assessing witnesses, and drawing inferences, should not be underestimated. The judge has the opportunity of listening to and observing the witnesses, and considering the evidence as it is revealed over a period of time, and of reflecting on that evidence, and its effect, in the course of the trial. That perspective affords the trial judge a substantial advantage, in reaching relevant conclusions on the facts, that is not available to a court of appeal, which is confined to a reading of the transcript and an examination of the exhibits.[81]
136 As to the advantages which a trial judge enjoys over an appellate court, Gleeson CJ, Gummow and Kirby JJ said in Fox v Percy:
[An appellate court] must, of necessity, observe the 'natural limitations' that exist in the case of any appellate court proceeding wholly or substantially on the record. These limitations include the disadvantage that the appellate court has when compared with the trial judge in respect of the evaluation of witnesses' credibility and of the 'feeling' of a case which an appellate court, reading the transcript, cannot always fully share. Furthermore, the appellate court does not typically get taken to, or read, all of the evidence taken at the trial. Commonly, the trial judge therefore has advantages that derive from the obligation at trial to receive and consider the entirety of the evidence and the opportunity, normally over a longer interval, to reflect upon that evidence and to draw conclusions from it, viewed as a whole.[82]
137 The trial of this case took place over the best part of a month. The judge was required to immerse himself in over 14,000 pages of material. Of necessity, this Court was not provided with the bulk of the evidential material supplied to the judge. Nor were we asked to immerse ourselves in the same way in the factual detail. Plainly, therefore, we are not in as good a position as the trial judge to determine what facts should be found so far as exposure to relevant asbestos products is concerned. Again, so much was conceded before us by the parties.
138 Senior counsel for CSR conceded that there was a 'high bar' to a successful appellate challenge to findings of fact. This was particularly so in the present case, counsel acknowledged, as it concerned 'layer upon layer of inferences ... as opposed to a couple of threads'. Counsel further accepted that the scope, and limits, of an appeal court's review of factual findings were as defined by the unanimous judgment of the High Court in Robinson Helicopter Co Inc v McDermott:
A court of appeal conducting an appeal by way of rehearing is bound to conduct a 'real review' of the evidence given at first instance and of the judge's reasons for judgment to determine whether the judge has erred in fact or law. If the court of appeal concludes that the judge has erred in fact, it is required to make its own findings of fact and to formulate its own reasoning based on those findings. But a court of appeal should not interfere with a judge's findings of fact unless they are demonstrated to be wrong by 'incontrovertible facts or uncontested testimony', or they are 'glaringly improbable' or 'contrary to compelling inferences'.[83]
139 Within the limits described, we have reviewed the evidence led at trial and his Honour's careful analysis of it. In our view, there is nothing in his Honour's factual conclusions which is in the least degree improbable, nor is there anything in the evidence which compelled any contrary inferences. The position is quite to the contrary. In our respectful opinion, the inferences which his Honour drew were cogent and logical and - crucially - were well open on the evidence before him.
140 This was a very difficult case. The judge engaged in detailed analyses at each level of the argument, in order to determine whether in a given case there was a relevant exposure to Hardie-BI product. While different judges may have reached different states of satisfaction (or lack of satisfaction) about the matters that the trial judge was required to determine in this proceeding, we see no error in his Honour's conclusions as to his state of satisfaction regarding the claimants' exposure. We have set out and described above the judge's reasoning processes. Those processes were logical and reasoned. His methodology, of combining generic evidence with specific evidence relating to each claimant, was sound and appropriate.
141 Ultimately, in each case, it was the totality and combined weight of that evidence which determined whether the more probable inference was that the claimant had been subjected to a material exposure of Hardie-BI ATI. We reject CSR's submission that the generality of the judge's language bespeaks some inadequacy in his Honour's reasoning or demonstrates a lack of sufficient certainty to support the findings. In particular, the submission ignores the basic exercise involved in inferential reasoning in a case such as this. In our view, the language used by the judge emphasises the care with which he approached his task, and is consistent with the methodology he applied.
142 As noted, CSR relied on the fact that the detailed affidavit in respect of one sub-group claimant (Alexander) had caused his Honour to 'modify some inferences that would otherwise have been drawn'.[84] We reject the submission that this circumstance affects his Honour's conclusions in relation to other claimants. Plainly, the judge was alive to the difficulty of his task and the state of the evidence (both generally and in respect of individual claimants). It would be surprising if in a particular case detailed evidence did not cause some modification of conclusions that could otherwise be drawn from less specific evidence. But that state of affairs does not mean that inferences otherwise open on the evidence actually led at trial should not be drawn because of the possibility that more detailed or specific facts might have been available. Each case was to be determined on the evidence before the court, not on the basis of speculation about what other evidence might exist (or have existed).
143 As also noted above, CSR emphasised that there was no direct evidence of exposure to Hardie-BI product, while there was a significant body of evidence of possible exposure to non-Hardie-BI product. Those matters were, of course, significant in determining whether a finding of a relevant exposure to Hardie-BI product should be made. But it is clear from the reasons for judgment that his Honour fully appreciated their significance. There are repeated references to both matters throughout the judgment.[85]
144 The judge made a series of general findings about the presence of Hardie-BI ATI at the relevant sites during the relevant periods. In our view, when those findings were combined with the evidence about the work engaged in by relevant trades, and about the work history of individual claimants, they provided a sound basis for his Honour's conclusions about individual exposures to Hardie-BI product.
(a) the Hardie-BI partnership enjoyed a very substantial portion of the Australian asbestos thermal insulation market during the partnership period - it was probably the dominant supplier by a 'healthy margin';[86]
(b) both in respect of materials used in the construction phase of the two power stations built during the Hardie-BI partnership period (Hazelwood and Yallourn W) and the maintenance phases for all of the power stations it is likely that Hardie-BI ATI was the dominant insulating material that was used (especially in respect of pipes);[87]
(c) Hazelwood and Yallourn W were significantly more likely to contain large amounts of Hardie-BI ATI than those power stations built prior to the Hardie-BI partnership period (newly constructed plants required the entire plant to be insulated from the outset, and by the mid-1960s, Hardie-BI's K-Lite and High Temp products were more and more being used in preference to other forms of insulation);[88]
(d) the incidence of the use of Hardie-BI product in construction and maintenance probably increased relative to the use of other products from the mid-1960s due to an increase in preference for the use of the calcium silicate product, K-Lite (manufactured by the Hardie-BI partnership), over the older 85 per cent magnesia product;[89] and
(e) in respect of the boilers at Hazelwood, the head contractor (Babcock and Wilcox) used Hardie-BI Super High Temp product almost exclusively.[90]
As we have said, no issue was taken by CSR as to the correctness of these findings or whether the underlying factual evidence supported them.
146 It may be accepted that there were some 'evidential lacunae' but that does not invalidate the process of reasoning adopted by the judge. In asbestos litigation (where the putative exposures usually occurred decades ago), it is always possible to identify matters about which particular evidence, or specific detail, is lacking. The quality of the evidence, and details of what may be missing must always be considered. And the mere identification of a list of topics about which there is said to be a lack of information or detail falls well short of requiring a conclusion that a positive finding of a trial judge is 'glaringly improbable' or 'contrary to compelling inferences'.
147 As in all cases of this kind, the judge was required to do the best he could with the evidence before him, and to engage in a reasoned process to determine whether he was satisfied, on the balance of probabilities, of the factual conclusion sought by the party making the claim. None of the asserted 'evidential lacunae' was such as to preclude his Honour from reaching the conclusions which he did. They were merely matters to be considered in weighing all of the evidence.
148 CSR also makes complaint that the judge gave undue weight to histories given by claimants to medical practitioners. In our view, there is nothing in this point. The judge, having correctly ruled that the histories were admissible, was entitled to take them into account as important evidence as to each claimant's exposure to asbestos.
149 What we have said so far in this section of the judgment is sufficient to dispose of the complaints in grounds 3 and 4, both as they apply generally to the claimants and as they apply (via grounds 6-10) to individual claimants. That leaves for consideration particular complaints raised under grounds 6-9.
150 In ground 6, complaint is made about the judge's finding that Mr Johnstone's exposure to Hardie-BI product was a cause of his lung cancer. CSR contends that the judge:
(a) erred in failing to properly apply the approach to causation prescribed by Amaca v Ellis;[91] and
(b) erred in finding that causation was established 'notwithstanding that the evidence did not support any finding that exposure to asbestos from Hardie-BI product or otherwise was a necessary condition of Mr Johnstone's lung cancer'.
151 The judge dealt with the question of causation with respect to Mr Johnstone's lung cancer as follows:
There was no debate about the true test for causation in Australian common law. It is as most conveniently summarised by the Full Federal Court in Merck Sharp & Dohme (Australia) Pty Ltd v Peterson where the Court discussed the continuing importance of the 'but for' test noting that in Amaca v Ellis the High Court accepted that a plaintiff must show on the balance of probabilities that the actionable conduct of the defendant was a necessary condition of the occurrence of the harm in respect of which the plaintiff claims damages. The Court then continued:
Allsop P summarised the current position in Australia as follows, at [22]:
Subject to the views of the High Court in respect of any development of the common law or to the operation of any legislation, it can be concluded that at common law, as a general proposition, the increasing of risk of harm by a tortious act is, alone, insufficient for a conclusion of causation by material contribution to that harm or for a conclusion of responsibility in law for that harm.
We respectfully agree with Allsop P.
The rule that a plaintiff must establish as a necessary condition of recovery that he or she would not have suffered loss but for the defendant's actionable misconduct is deeply rooted in the policy of the common law that one person should not be liable for the loss suffered by another unless the plaintiff can establish that the defendant's actionable conduct caused the plaintiff's loss. It is not open to this Court to decide that we should no longer adhere to this rule and that a different and 'better' rule should henceforth be applied. This Court must proceed on the footing that for Mr Peterson to show that the consumption of Vioxx materially contributed to his MI, in the sense relevant in Australian law, he is obliged to show that his consumption of Vioxx was a necessary condition for the occurrence of the heart attack on 8 December 2003. To say that the consumption of Vioxx was, for example, 'in the mix' of possible causes is not enough in this regard. As Beazley JA said in Bendix Mintex Pty Ltd v Barnes (1997) 42 NSWLR 307 at 339, the onus of proof of causation 'is not discharged by establishing that a particular matter cannot be excluded as a cause of the injury'.
The issue in Mr Johnstone's case is whether his exposure to asbestos was a necessary condition of his lung cancer. In other words, the question was: has it been proven as a matter of probability that, but for his exposure to asbestos, he would not have developed lung cancer?
Mr Johnstone was a long standing but light cigarette smoker all his life until the diagnosis of his illness. There is no doubt that cigarette smoking is recognised as a causal factor in the development of lung cancer.
The debate before me centred on whether, to establish the probable causal role of asbestos inhalation in lung cancer, it was necessary to show that the lung cancer patient also had asbestosis or only that he or she had inhaled enough asbestos to cause asbestosis. There was also a factual issue as to whether Mr Johnstone did have asbestosis, and failing that, whether he had inhaled sufficient amount of asbestos fibre that could cause asbestosis.
Professor Henderson summarised what he considered to be the state of medical knowledge in a series of bullet points in his written report:
Professor Henderson was asked to express his view on the balance of probabilities as to whether any exposure to asbestos during the Hardie-BI period had made a significant causal contribution to the development of Mr Johnstone's lung cancer. He answered as follows:
Yes, for causation of Mr Johnstone's non-small cell of lung, from his exposure at the YPS within the Hardie-BI period - i.e., in the years 1973 to 1974 (for a period of ~ 16 months) - 'on the balance of probabilities'. My opinion is based on his occupational work/exposure history, Dr Kilpatrick's assessment of his cumulative (total) exposure as >25 fibre-years and the clinical-radiological evidence of interstitial fibrosis (asbestosis). Although the Hardie-BI YPS exposure lasted for ~ 16 months, it would have made a more than trivial causal contribution to the development of his lung carcinoma and to the development and severity of any asbestosis, as well as the development of pleural plaque tissue.
Professor Fox did not accept that the true test for the causal role of asbestos in lung cancer was that it was sufficient only to show enough exposure to cause asbestosis. He considered that the view accepted by the wider medical community was that a diagnosis of asbestosis was necessary to make the causal role of asbestos a probability. He also disagreed with Professor Henderson that the combined effect of smoking and asbestos inhalation was synergistic (that is multiplicative) - he believed it was only additive. In any event, he doubted that Mr Johnstone had achieved the exposure criteria of 25 fibre mls per year, known as the Helsinki criteria.
Professor Henderson's reference to Dr Kilpatrick's assessment of a cumulative exposure of more than 25 fibre mls per year was a reference to a report to which Professor Fox had not had access at the time of writing his own report.
Professor Henderson believed that Mr Johnstone did in fact exhibit sufficient signs of asbestosis for it to be concluded that he had that condition. For his part, Professor Fox thought that the radiological evidence of asbestosis was inconclusive and had recommended further investigation.
This issue seems to have been satisfactorily resolved in favour of Professor Henderson's view. Mr Johnstone subsequently died and an autopsy report showed the presence of asbestos bodies in his lungs. When that report was shown to Professor Henderson he concluded that there was a 'persuasive diagnosis of asbestosis' because the presence of asbestos bodies represented a good delineator between asbestosis, on the one hand, and a non-asbestosis form of interstitial lung disease, on the other. Professor Henderson was not challenged on that view in cross-examination. Although he could not say with certainty that Mr Johnstone would not have developed lung cancer without being exposed to asbestos, Professor Henderson believed it was more likely than not that asbestos had contributed significantly to the lung disease.
In my opinion, I can and should accept that the evidence establishes that Mr Johnstone's exposure to asbestos fibre in general played a non-trivial causal role in the development of his lung cancer. Professor Henderson was not challenged in his view that there was a multiplicative relationship between the combined agents of tobacco smoke and asbestos fibre in causing lung cancer. When asked whether he could assign the proportional role between tobacco smoke and asbestos Professor Henderson thought he could only say that the asbestos had made a 'significant' - 'more than trivial ... more than negligible' causal contribution to the lung cancer disease. In his written report he said:
His cigarette smoking would have also had a substantial causal effect. His lung cancer can be attributed on probabilistic grounds to the combined synergistic effects of his tobacco smoking and his asbestos exposure by way of causal co-action, with an interactive effect which by definition is not separable/fractionable into the individual effects of tobacco smoke and asbestos.[92]
152 In support of the proposition that James Hardie did not establish that Mr Johnstone's exposure to Hardie-BI product was a necessary condition for the development of his lung cancer, CSR relied upon the following evidence given by Professor Henderson in cross-examination:
Can you say that but for the asbestos exposure, that Mr Johnstone would not have had lung cancer? - - - No, I cannot state that with a - at a level of certainty.
Yes? - - - All I can say is that the probability that he would have been less if - than it was when he did have the asbestos exposure.
The risk - the risk was increased, that's - that's the point isn't it? - - - Yes.
The risk was increased by the interactive effect of the two together? - - - Yes.
That's correct, isn't it? - - - Yes.
And that's as high as you - high as it can go, isn't that the case? - - - The - yes and the point is that risk is a prospective estimate that an event will or won't happen and the point is that once the event has happened, the reality is that you have two known carcinogens which are known to interact with each other. And I cannot separate those out in terms of biological causation of the lung cancer.
Is it - does it follow from that you would be unable to attribute to - attribute a proportional cause of influence as between asbestos and tobacco smoke in the case of Mr Johnstone? - - - Well the exercise in terms of lung cancer is more complicated because it's a more multifactorial disease and mathematicians and epidemiologists will sometimes then try and apportion back to the individual effects, the interactive effect. That is they'll try and fractionate the interactive effect back to each and say, well one has made a significant causal contribution which is more than trivial. If one were to do this exercise in the case of Mr Johnstone, given that he has asbestosis, even if one could do it and it's biologically invalid to do so, one could say that the asbestos has made a significant, that is a more than trivial, more than negligible significant causal contribution.
And you'd also say that the smoking has, by definition ---? - - - Yes.
--- exactly the same effect. Correct? - - - Yes.
153 On appeal, CSR submitted that this evidence did not permit a conclusion that Mr Johnstone's exposure to Hardie-BI asbestos was a necessary condition for the establishment of his lung cancer. James Hardie disputed this proposition and contended that, in any event, the cross-examination relied upon by CSR had to be understood in the context of answers given by Professor Henderson a little earlier in his cross-examination, as follows:
In respect of Mr Johnstone you couldn't say that that man would not have got lung cancer if he had not had asbestos exposure, that's correct isn't it? - - - I cannot say that he would not have and that was stated in the original Helsinki Criteria, that even when asbestosis is present, one cannot say with a level of 100 per cent certainty that the lung cancer is due to the causal contribution from asbestos. What one can say is that level of exposure sufficient to cause asbestosis gives a probability in excess of 50 per cent. That is more likely than not that the asbestos has contributed significantly.
...
The fact is that Mr Johnstone may very well have had lung cancer even if there was no asbestos exposure. That's the case, isn't it? - - - It is the case that he may have developed lung cancer even if he had not had asbestos exposure. Equally and more probably, one can say that only a minority of cigarette smokers, even when they smoke heavily, will develop lung cancer just as a majority of asbestos exposed individuals will not develop mesothelioma.
154 It is trite to say that, with respect to causation, each case must be treated on its own evidence. Amaca v Ellis is not authority for the proposition that, where a smoker who has been exposed to asbestos develops lung cancer, that smoker can never establish that the exposure to asbestos was a cause of the lung cancer.
155 Amaca v Ellis involved a claim brought by a plaintiff who was a smoker and who had been exposed to asbestos fibres in the course of his employment with two employers. The plaintiff contracted lung cancer, and later died. The trial judge held that the plaintiff would succeed:
if the evidence establishes that it is more probable than not that [the plaintiff's lung cancer] was caused by asbestos arising from one or both of his periods of occupational exposure to that mineral or if it supports the conclusion, on the probabilities, that his cancer was caused to a material extent by the combined effects of his periods of asbestos exposure with the effects of his chronic smoking.[93]
156 The High Court held that this framing of the question diverted attention from whether individual defendants were to be found liable.[94] The Court went on to say:
It [the issue as formulated by the judge] treated the relevant question as being: why did [the plaintiff] develop lung cancer? But as pointed out earlier in these reasons, the relevant question, to be asked separately in respect of each defendant, was: is it more probable than not that the negligence of the defendant was a cause of [the plaintiff's] cancer?[95]
157 In Amaca v Ellis, the critical expert opinion evidence in respect of causation was given by a Dr Leigh. The High Court concluded that, considering Dr Leigh's opinion as a whole, it was evident that he 'did not express the view that, if a smoker has been exposed to asbestos and develops lung cancer, the asbestos exposure is, or is probably, a cause of that cancer'.[96] In the present case, by contrast, that was the very opinion which Professor Henderson had expressed and about which he was cross-examined.
158 The judge was entitled to accept Professor Henderson's opinion as given at trial. Moreover, his Honour was correct to conclude that the opinion was not materially affected by Professor Henderson's acknowledgements in cross-examination that he could not state a particular matter 'with certainty'. 'Certainty' is not the relevant standard for the determination of whether a particular exposure can be said to be a cause of injury.
159 For these reasons, no error has been shown in the judge's conclusion that Mr Johnstone's exposure to Hardie-BI asbestos product was a cause of his lung cancer.[97]
160 The remaining complaint in ground 7 is that the judge:
erred in respect of the contribution claim pertaining to [Mr Benjamin] ... in making an order for contribution where it was not possible to undertake a reasoned analysis of the appropriate apportionment of causative reasonability [scil, responsibility] for Mr Benjamin's mesothelioma between the Hardie-BI partnership and James Hardie.
161 With respect to this complaint, CSR directed the Court to para 665 of the judge's reasons, but advanced no further argument. At para 665, the judge said:
Turning to the second of the two issues, the evidence does not permit a closely reasoned analysis of the probable division of apportionment between the Hardie-BI partnership's responsibility and James Hardie's individual responsibility toward the cause of Mr Benjamin's mesothelioma. Doing the best I can on the whole of the evidence and aiming to be fair to all parties, I consider it is appropriate to fix the division at one-third against James Hardie alone and two-thirds against the Hardie-Bi partnership.
162 For similar reasons to those set out above under ground 7, there is nothing exceptional or erroneous in this paragraph. CSR did not advance any argument that some other apportionment ought to have been made. Nor was any complaint made by CSR about a lack of reasons for the apportionment. Outside the complaints already dealt with, it was not asserted by CSR that the evidence called at trial could not justify the judge's apportionment. It was, after all, an apportionment involving questions of fact and degree, about which reasonable minds might differ. CSR's complaint made under this heading must be rejected.
163 CSR's remaining complaint in ground 8 is that the judge:
erred in respect of the contribution claim pertaining to [Mr Alexander] ... by making findings regarding the relative causal potencies of amosite and chrysotile in respect of asbestosis when there was no evidence of this and insufficient evidence regarding the fibre type to which Mr Alexander may have been exposed in any event.
164 Alexander suffered from asbestosis. On the evidence, and as found by the judge, he was likely exposed to more non-Hardie-BI product than Hardie-BI product.[98] The judge concluded, however, that the overall causal significance of exposure to each type of product was 'likely to have been approximately the same'. This was said to be so because the Hardie-BI asbestos was 'the more potent amphibole fibre, amosite', whereas two of the non-Hardie-BI products to which Alexander had been exposed contained asbestos 'of a chrysotile variety'.[99]
165 The evidence showed that, for malignant disorders, amosite had a causal potency around 15 times greater than chrysotile.[100] But there was (and is) no evidence of any differential of causal potency in relation to asbestosis (the condition from which Alexander suffered). Accordingly, as James Hardie correctly conceded, CSR's complaint in this regard must be upheld. There being no evidence of different causal potencies for asbestosis, it is not necessary to deal with CSR's complaint that there was insufficient evidence regarding the fibre types to which Alexander was exposed. The matter may be dealt with simply on the basis that there was (in Alexander's case) no reason to examine the specific type of asbestos fibres to which he was likely exposed.
166 The judge determined that CSR should contribute $35,000 plus interest in respect of the settlement of Alexander's claim. While accepting that the judge was wrong to base his assessment upon different causal potencies of amosite and chrysotile, James Hardie submitted that the amount at stake was too small to justify remitting the assessment to the Trial Division, or to justify the expenditure of further court time and money. We accept that a remitter is not warranted but consider that there should be an adjustment of the judge's apportionment, so as to remove any suggestion of different causal potency so far as the asbestosis was concerned.
167 The judge's assessment of contribution was made as a result of the upholding of James Hardie's claim for equitable contribution, which we discuss below. The parties provided further submissions as to the amount (exclusive of interest) that should have been awarded had the judge not based his assessment upon a wrong understanding of causal potencies. CSR submitted that there were two alternative approaches, one resulting in an assessment of $7,000, the other in an assessment of $10,000. James Hardie, by a different route, submitted that the appropriate figure was $20,000.
168 Each approach involves a degree of speculation. Questions of degree and judgment are at the heart of this assessment. The judge found that Alexander was likely exposed to more non-Hardie-BI product than Hardie-BI product. James Hardie sought contribution in respect of amounts paid by it totalling $105,219.49. It may be inferred that the judge concluded that CSR had a liability to contribute towards $70,000 of this amount ($35,000 being the appropriate sum to award if the overall causal significance of each exposure was 'approximately the same').
169 Proceeding on the basis that the causal potencies of the different asbestos products were the same, the assessment must reflect the causal significance of Mr Alexander's exposure to a significantly greater amount of non-Hardie-BI product than Hardie-BI product. Having reviewed the evidence, we think that the appropriate figure for contribution is somewhere between $10,000 and $15,000. In the circumstances, we will vary the judge's assessment from $35,000 to $12,500.
170 The remaining complaint in ground 9 is that the judge:
erred in respect of the contribution claim pertaining to [Mr Kracht] ... in making an order for contribution where it was not possible to venture a conclusion on the relative proportions of Mr Kracht's exposure to asbestos from Hardie-BI products and non-Hardie-BI products.
171 CSR directed the Court to para 764 of the judge's reasons, but advanced no further argument. In that paragraph, the judge said:
Overall, except to say he was probably exposed to both, it is not possible to venture a conclusion on the relative proportions of his exposure to Hardie-BI and non-Hardie-BI material.
172 This statement must be read in context. Later in the reasons, the judge dealt in more detail with the issue of Mr Kracht's exposure to Hardie-BI and non-Hardie-BI material. The judge said:
Mr Kracht's exposure to ATI made by James Hardie alone was likely to have spanned the combined period of around eight years while working at Yallourn D and Morwell in the late 1950s and during the 1960s. His exposure to Hardie-BI material could not have begun, at the earliest, until September 1964 and was likely to have commenced sometime later, and then occur progressively, as partnership product began to appear and be used for the re-lagging of pipes, boilers, turbines and other hot appliances in maintenance and repair work. During the same time, however, he was also likely to have continued to be exposed to asbestos from material made by James Hardie alone (for example, as ATI was removed).[101]
173 For similar reasons to those set out above under ground 7, there was nothing impermissible in the judge's approach. Moreover, the amount of contribution awarded ($15,000)[102] suggests that the judge concluded that Mr Kracht had been exposed to more Hardie-BI than non-Hardie-BI material - as his Honour had in fact described in the passage above. CSR's complaint made under this heading must be rejected.
Limitation defences: cross-appeal grounds 4 and 5
174 Grounds 4 and 5 of James Hardie's cross-appeal concern the construction and operation of s 24(4) of the Wrongs Act, as that section existed during the Hardie-BI partnership period.[103] Those grounds are in the following terms:
As will appear, the form of s 24(4) changed materially between the 1958 version and the 1972 version. For that reason, we will deal first with ground 4, which concerns the 1958 version.
175 Section 24(1)(c) of the Wrongs Act permitted a tortfeasor, liable in respect of damage suffered by a person, to recover contribution from any other tortfeasor liable in respect of the same damage. Section 24(4) then provided as follows:
Notwithstanding any provision in any statute requiring any notice to be given before action or prescribing the time within which an action may be brought, proceedings for contribution under this section may, although no such notice has been given or such time has expired, be commenced at any time within twelve months after the writ in the original action was served on the party seeking to recover such contribution, but at the expiry of such twelve months such right to recover contribution shall be extinguished.
176 As can be seen, this provision authorised the bringing of proceedings for contribution at any time within a period of 12 months
after the writ in the original action was served on the party seeking to recover such contribution.
Further, the right to recover contribution would be 'extinguished' upon the expiry of that 12-month period.
177 Also in force at that time was s 5(1)(d) of the LAA,[106] which provided as follows:
The following actions shall not be brought after the expiration of 6 years from the date on which the cause of action accrued:
...
(d) actions to recover any sum recoverable by virtue of enactment, other than a penalty or forfeiture or sum by way of penalty or forfeiture.
178 It was common ground, both at first instance and on appeal, that an action for contribution under s 24(1) of the Wrongs Act was an action 'to recover a sum recoverable by virtue of enactment'. The issue which the judge had to determine was whether the limitation period for an action for contribution under s 24(1) was fixed by s 24(4) to the exclusion of s 5(1)(d) (as CSR contended) or whether, instead, s 24(4) was supplementary to s 5(1)(d) (as James Hardie contended). His Honour gave detailed reasons for preferring the construction advanced by CSR. (An extract from his Honour's careful analysis is set out below.)
179 As will appear, his Honour placed considerable reliance on the 1959 decision of Dean J in Allman v Daly.[107] In that case, a person who had been injured in a collision between a bus and a truck sued the truck driver for damages for negligence. Subsequently, the driver commenced a contribution proceeding against a third party. By way of defence, the third party pleaded that the contribution proceedings had not been commenced within the period of 12 months after the plaintiff's writ had been served on the defendant driver.
180 The 12-month period having expired, the third party contended that the defendant's right to seek contribution had been extinguished by the operation of s 24(4) of the 1958 Act.[108] Dean J recorded in his reasons the defendant's answering contention, that sub-s (4)
was not intended to provide a general limitation of time applicable to all claims for contribution under the Act but to deal only with those cases where there was a special statutory provision as to notices of action or as to the time in which a defendant might be sued.[109]
181 His Honour rejected that submission, holding that the subsection was
of general application and operates to bar all claims for contribution at the end of twelve months from the time when the writ in the original action was served. The words in sub-section (4) 'any provision ... prescribing the time within which any action may be brought' include every existing Statute of Limitations which would otherwise be applicable and are not confined to those provisions applicable to claims against particular corporations. All existing provisions which provide a limitation of time are swept away and in their place a new and universal rule is enacted with respect to the bringing of claims under the Act. There is no reason for giving the sub-section any restricted operation.[110]
182 Before the trial judge, James Hardie argued that the 'fundamental limitation rule' applicable to contribution claims was that prescribed by s 5(1)(d) of the LAA and that s 24(4) was merely 'facultative'. That is, the subsection enabled a party upon whom a writ was served to commence a claim for contribution within a year of being served, 'notwithstanding' provisions in other statutes prescribing time limits for actions. On that argument, s 24(4) was not intended to apply to all claims for contribution. The statement by Dean J in Allman, that s 24(4) created 'a new and universal rule', was to be read as confined to that subset of contribution proceedings in which the contribution-seeker had been served with a writ. If no writ had been served, s 24(4) simply did not apply.[111]
I reject James Hardie's interpretation of what Dean J said in Allman about sub-s (4) being of 'universal application', namely that it was confined only to contribution actions by a wrongdoer who had been served with a writ. A close reading of his Honour's judgment shows that the third party argued that the limitation section was 'of general application and provided a period of limitation in all cases where a defendant sought contribution from a third party pursuant to the Act'. The defendant had argued that the sub-section was not intended to provide a general limitation of time applicable to all claims, but only for those cases affected by a special statutory provision as to notice before action or the time in which a defendant might be sued.
Although not on all fours with the argument raised by James Hardie in this case, the defendant's argument in Allman was similar in concept. The defendant wanted to confine the sub-section's application to only that subset of cases that featured a constraint of the kind expressly mentioned in the sub-section (ie being affected by another potential time limit). Dean J rejected that construction. In a similar way, in this case, James Hardie wants to confine the operation of sub-s (4) to only that subset of cases that feature another condition appearing in the sub-section, namely, that a writ has been served on the person seeking contribution.
But, when his Honour referred to 'a new and universal rule', he was, in my view, signalling that this rule was to cover all instances of contribution claims brought under the enactment. There is simply no room left in the language used by his Honour for exception or excision.
In my view, his Honour was (with respect) correct in this regard. This was a new right, and Parliament was cautious about its extension into unknown territory. Rather than support its view, the extrinsic materials to which James Hardie referred tends to support the opposite view. As revealed by those materials, the dominant focus at that point in the evolution of tortfeasors' rights of contribution was the right of a defendant after being served by an injured party with a writ.
...
In State Electricity Commission of Victoria v Fooks Tadgell J (with whom Brooking and Smith JJ agreed) appeared to construe the reference to the writ in s 24(4)(ii) as being a reference to the writ served by the injured party claiming the damage the liability to pay compensation for which gave rise to the entitlement to recover contribution. Although s 24(4)(a)(ii) used slightly different language to its pre-1972 antecedent, the construction given to it by the Full Court in 1994 tends to corroborate the view that the cognate expression used in the pre-1972 provision also meant a writ that was initiated by the injured party. In that respect I agree with the construction given to it by James Hardie.
But, the Full Court's construction of the post-1972 provision is consistent with the view that the subsection is a limitation provision to cover all eventualities, of which a tortfeasor being served with a writ by the injured party is just one. As it was after 1972, so it was before 1972. The introduction by the 1972 amendment of additional events that could set off the limitation period is not to be taken as converting a limitation provision of narrow application into one of universal application. Rather, it was an amendment to cure various lacunae left by the original provision.
James Hardie attempted to support its position by arguing that s 24 is neatly divided into three discrete parts: that is, s 24(1)(c) concerns entitlement; s 24(2) concerns apportionment; and s 24(4) deals only with limitation. It argued that it is wrong to construe the operation of the limitation provision in a way that affects substantive entitlement. Accepting that s 24(4) operated only if a writ in the original action was served on the party pursuing contribution, it argued that those who had not been served with the writ must therefore have their time limit governed by another statute. Alternatively, there is no applicable limitation provision.
I was initially attracted to James Hardie's argument. But two things can be said against it. First, the requirement of service of a writ is not expressed as a condition for the ascertainment of the entitling liability referred to in sub-s (1)(c): rather, it is a procedural prerequisite for the ability to commence the action. Whilst it might have a practical effect of limiting the entitlement, it is not itself a qualification of the entitling words in sub-s (1)(c).
But having that practical effect is not necessarily to be regarded as inconsistent with the contemporary conception of the right, or the circumstances in which it was assumed to operate. Interpretations of the legislation by 1958 did not categorically accept that the tortfeasor pursuing the contribution could be 'liable' other than by judgment. Or, to the extent settlement was contemplated to be a sufficient basis for liability, it was not clearly accepted that such a basis could be founded on a settlement without action. In Bitumen and Oil in 1955, the High Court did not find it necessary to decide whether a tortfeasor who had settled could be 'liable' so as to seek contribution. In Brambles Constructions Pty Ltd v Helmers in 1966, Windeyer J said that liability was 'ordinarily [ascertained] by judgment, perhaps in some cases in some other way'. Only in 1996, in Thompson v Australian Capital Television Pty Ltd, was it finally acknowledged in the High Court, following Australian State and Territory decisions, that liability of the first tortfeasor included a liability ascertained upon a settlement, whether or not reflected in a consent judgment.
In short, the conclusion that was ultimately reached in Australia that the liability spoken of in sub-s (1)(c) need not be a liability by judgment was not self-evident in 1949 or even in 1958. Having that knowledge assists in explaining what otherwise seems like a clear anomaly today. It makes reasonable a construction of sub-s (4) that does not allow for an effective right of contribution for a wrongdoer not served with a writ in the original action brought by the injured party.
Finally, any so-called injustice of this outcome is not as great as may be supposed and ought not to be used as an imperative for searching for an alternative. A would-be seeker of contribution could, before agreeing to pay any contribution that gave rise to the right to claim it from another, have insisted upon being served with a writ, in which case that person would have a year to commence a contribution claim.[112]
184 For reason which follow, we respectfully disagree. In our opinion, the submission advanced by James Hardie, which was renewed on the cross-appeal, is correct and must be upheld. On its proper construction, s 24(4) was not intended to, and did not, supplant s 5(1)(d), being the limitation provision otherwise applicable to a proceeding for contribution under the Wrongs Act. Rather, s 24(4) provided a further, limited, period of time for issue of such a proceeding, in a case where the party claiming contribution had been served with a writ.
185 In our view, the critical words are in the opening lines of the subsection, as follows:
Notwithstanding any provision in any statute ... prescribing the time within which an action may be brought, proceedings for contribution under this section may, although ... or such time has expired, be commenced ... .[113]
The highlighted words - 'may, although such time has expired, be commenced' - make clear that Parliament was intending to authorise the commencement of a contribution proceeding notwithstanding the prior expiry of any statutory time limit otherwise applicable to a proceeding of that kind. Far from ousting the operation of such other limitation provision, s 24(4) assumed its applicability and the expiry of the time limit there provided.
186 The words to which we have referred make it clear that s 24(4) was not intended to operate to the exclusion of s 5(1)(d) but was to operate in conjunction with s 5(1)(d). It follows that, while the result in Allman is correct, insofar as Allman holds that all other limitation periods were 'swept away', Allman must be viewed as having been wrongly decided. Dean J's conclusion that all existing limitation provisions had been 'swept away', and that sub-s (4) had enacted 'a new and universal rule', appears to have been founded on the words 'notwithstanding any provision ... prescribing the time within which an action may be brought'. But, with respect, that interpretation overlooked the significance of the words to which we have drawn attention, which require a different conclusion.
187 On the construction adopted by the trial judge, a tortfeasor seeking to claim contribution in a claim governed by the 1958 version of s 24(4) could never have brought a contribution proceeding unless a writ had been served on that tortfeasor as a party in the proceeding. This would require a tortfeasor, who is liable to meet a claimant's claim for damages and willing to pay without any proceeding being issued against it, to have a proceeding issued against it before it could then go on to seek contribution from another tortfeasor similarly liable to meet the claimant's claim for damages. It is unlikely that Parliament intended that parties, otherwise able to resolve their differences, would be forced to commence legal proceedings (or to insist that a proceeding be commenced) before resolving their differences, merely so as to allow a subsequent contribution claim to proceed.
188 As appears from the extract of the reasons set out above, his Honour treated the Full Court's interpretation of the 1972 version of s 24(4) as 'corroborating' the construction of the 1958 version which he preferred. But, as will appear, the 1972 version is so materially different from the 1958 version as to render the decision in State Electricity Commission of Victoria v Fooks[114] of no assistance in the construction of the 1958 version.
189 In our view, the contention advanced by James Hardie as to the structure of the 1958 version of s 24 is correct: s 24(1)(c) was concerned with the entitlement to contribution; s 24(2) provided for apportionment; and s 24(4) provided for limitation of time in the category of cases specified by it. Read together with s 5(1)(d) of LAA, the 1958 version of s 24(4) permits a party to whom the section applies to claim contribution from another tortfeasor liable in respect of the same damage at any time within six years of making a payment, with a further 12 month period as described in the section if the six year limitation period has expired.
190 Lest it be thought that this construction leaves little (if any) work to be done by the additional 12 month period, the following example suffices to show that this is not so. Assume the following facts:
(a) P suffers injury from a tort committed on 1 January 1970, by tortfeasors liable to P, being D1, D2 and D3;
(b) on 1 January 1972, P sues D1;
(c) on 1 January 1973, D1 settles with P and pays P an agreed sum for damages;
(d) on 1 July 1973, D2 agrees to pay, and pays, D1 contribution to D1's payment to P;
(e) on 1 July 1980, P obtains an extension of time to bring proceedings against D2 and commences a proceeding against D2;
(f) on 1 August 1980, P serves a writ on D2; and
(g) on 1 December 1980, D2 commences contribution proceedings against D3 in respect of the amount paid to D1 and in respect of P's second proceeding against D2.
On this scenario, while the six-year time limit provided by s 5(1)(d) of LAA has expired following D2's payment on 1 July 1973, D2's claim for contribution against D3 is still within the 12-month period referred to in the 1958 version of s 24(4).
191 For the above reasons, the judge erred in the construction of the 1958 version of s 24(4) of the Wrongs Act. The remaining issue under cross-appeal ground 4 is whether the contribution claims made in respect of particular claimants were statute- barred. We will return to this issue after we have dealt with James Hardie's argument concerning the judge's construction of the 1972 version of s 24(4).
192 By s 3(1) of the Wrongs Act 1972 (the '1972 Act'), s 24 of the Wrongs Act was amended by inserting a new sub-s (4) as follows:
(4) Notwithstanding any provision in any statute requiring a notice to be given before action or prescribing the period within which an action may be brought, proceedings for contribution under this section in respect of damage may be commenced by a tort-feasor -
(i) within which the action against the tort-feasor might have been commenced; or
(ii) within the period of twelve months after the writ in the action against the tort-feasor was served on him -
(b) where another tort-feasor, within the period within which the action against him might have been commenced or within twelve months after the writ in the action was served on him, serves a writ on the first-mentioned tort-feasor seeking to recover contribution in respect of that damage from the first-mentioned tort-feasor - at any time within the period of six months after that writ is so served.
193 The 1972 Act also inserted s 24(4A), which provided that the new sub-s (4) did not apply with respect to 'a tort committed more than 12 months before the commencement of [the 1972 Act]'. Additionally, s 3(2) of the 1972 Act provided that s 24 as originally enacted continued to apply with respect to 'a tort committed more than 12 months before [the commencement of the 1972 Act]'. The 1972 Act commenced on 1 January 1973. Accordingly, the original s 24(4) applied in respect of contribution claims with respect to torts committed up to and including 31 December 1971, with the later version of s 24(4) applying for contribution claims with respect to torts committed from 1 January 1972 onwards.[115]
194 At trial, the parties agreed that, if exposure to Hardie-BI product was causative of a claimant's illness, the commission of the tort (as distinct from the accrual of the claimant's cause of action) occurred when the partnership supplied product to the relevant SECV facility.[116] As the judge observed, this meant that the claims for contribution that were before the Court were governed by either the 1958 or the 1972 version,[117] 'or, possibly, both but in respect of different components of the claim'.[118] Thus, the question of which of the relevant provisions applied does not depend on the date of exposure, but rather the date when the partnership supplied the product to which a claimant was exposed. As the judge put it, 'a good start for making that determination is to assess when the exposure took place, and then draw an inference to a likely supply date'.[119]
195 At trial, James Hardie initially contended that, like the 1958 version of s 24(4), the 1972 version was, so far as time limits were concerned, 'a supplemental provision over and above other available limitation provisions'. During the course of the trial, however, it abandoned this position and conceded that the 1972 version governed exclusively the time within which a contribution claim brought pursuant to the 1972 version of s 24 could be commenced.
196 Before us, James Hardie sought to abandon that concession. We were invited to consider the proper construction of the 1972 version of s 24(4), notwithstanding the concession made at trial, on the basis that it could affect the result in any number of the remaining 196 contribution claims yet to be resolved. In those circumstances, and because of the potential for the issue to affect other claims between the parties, we permitted James Hardie to advance argument in respect of cross-appeal ground 5.
197 In our view, the concession made at trial was rightly made. The 1972 version of s 24(4) was clearly intended to deal exhaustively with the time limits for bringing a contribution claim under the amended Wrongs Act. The differences from the 1958 version are striking. First, and most importantly, the new s 24(4)(a)(i) gave the tortfeasor wishing to claim contribution the full period of six years within which (under the LAA) the plaintiff's claim against the tortfeasor might have been commenced. That period was allowed irrespective of whether, or when, a writ was served on the tortfeasor.
198 Secondly, the new s 24(4) did not contain the critical words from the 1958 version 'although ... such time has expired' which - as we have said - expressly recognised the applicability of other limitation provisions. Instead, the new provision included two distinct periods (the second replicating the 1958 version of s 24(4)), and provided that, if both were applicable, the longer would apply. Thus, if the six year period available under para (a)(i) had expired, the 12 month period provided for under para (a)(ii) would be available if, but only if, a writ had been served on the tortfeasor. In that context, the phrase beginning 'Notwithstanding any provision ...' conveys the legislature's unambiguous intention to oust any limitation period which might otherwise apply.
199 In a further written submission filed after the hearing,[120] James Hardie submitted that if para (a)(ii) was not engaged - because no writ had been served on it - the time limit in para (a)(i) was not engaged either. According to the submission, the longer of the time period that applied to a plaintiff or claimant's proceeding for damages and the period of 12 months after the writ was served was a time period that could not expire if no writ was served.
200 This submission is untenable. As we have said, the effect of para 4(a)(i) is that the tortfeasor has available - as a minimum - the period of time within which the plaintiff could have commenced an action against the tortfeasor. That period comes to an end on the date specified by the relevant limitation statute. Its expiry is wholly unaffected by the circumstance with which para (a)(ii) is concerned, which may never arise.
201 This view accords with what was said by the Appeal Division in SECV v Fooks.[121] SECV v Fooks concerned the post-1985 version of s 24(4) of the Wrongs Act, which is relevantly identical to the structure of the 1972 version. The Court there was dealing with circumstances where the period in sub-s (4)(a)(i) had not expired, and no writ had been served which might have engaged the operation of sub-para (a)(ii) of s 24(4).
Suppose a case in which A suffers damage for which X, admitting liability, settles a claim by A before action. X then sues Y for contribution, alleging that Y is also liable for A's damage. Section 24(4)(a)(i) requires that X commence his proceeding against Y within the period within which he, X, could have been sued by A; and para(a)(ii) has no operation.[122]
In a case in which the injured party is plaintiff and the parties seeking contribution are either co-defendants or defendants and third or subsequent parties, subs (4) operates, I think, not substantially differently from the way I have described. Continuing the example, the only practical difference would be that at least one of the parties seeking contribution would be a defendant at the suit of A and para (a) (ii) would be brought in to play.[123]
203 As we have said, in cases where there is no writ that might engage para (a)(ii) (and para (b) is not engaged), the time limit for claiming contribution under the 1972 version is that set out in para (a)(i).
The application of the relevant limitation provisions
204 The effect of our conclusions in respect of limitation issues so far is that, for torts governed by the 1958 version of s 24(4), the limitation period was that set out in s 5(1)(d) of the LAA (six years from the date of payment by James Hardie to SECV) or, if that period had expired, 12 months after the writ was served on James Hardie. For claims governed by the 1972 version of s 24(4), however, the limitation period is the longer of the limitation period applicable to the injured claimant's claim and the period of 12 months after the writ was served on James Hardie.
205 For those claims governed by the 1972 version of s 24(4), it is now necessary to define the limitation period that applied in respect of each injured claimant's cause of action. At trial, the parties agreed that s 5(1A) of the LAA was the relevant provision. That section prescribed the period within which to commence an action by reference to when the claimant first knew two matters: first, that the claimant had suffered the particular personal injuries; and, secondly, that those personal injuries were caused by the act or omission of 'some person' (collectively, 's 5(1A) knowledge').
206 At all relevant times up to and including 4 November 2002, an injured plaintiff had six years, from the time of first acquiring s 5(1A) knowledge, within which to issue a proceeding. On 5 November 2002, s 5(1A) was amended by s 3(3) of the LAA to reduce this period from six years to three years. The transitional provision in relation to this amendment, now found in s 39 of the LAA, provides:
Sections 5, 23 and 23A, as amended by s 3 of the Limitation of Actions (Amendment) Act 2002, apply to causes of action that accrue on or after the commencement of that section [5 November 2002].
For any action that was commenced up to and including 4 November 2002, the plaintiff had the benefit of a six year period from the time of first acquiring knowledge of those two matters. After that date, the time period was reduced to three years.[124]
We would qualify this statement by noting that, after 4 November 2002, the time period was reduced to three years - but only for causes of action that accrued on or after 5 November 2002, in accordance with the transitional provision.[125] That is, the six year period still applied in respect of a claimant who acquired s 5(1A) knowledge before 5 November 2002, but who issued a proceeding on or after 5 November 2002. This is so because such a claimant's cause of action accrued at the time s 5(1A) knowledge was acquired (before 5 November 2002), even though the proceeding might have been issued after 4 November 2002.
208 At trial, James Hardie submitted that it was for CSR to prove that the time limit under s 24(4)(a)(i) applicable to each claimant had expired before James Hardie commenced its claim in respect of that claimant. CSR submitted that, as a matter of necessary inference, by the time each claimant served his or her writ on SECV that claimant must have had s 5(1A) knowledge. So, it was argued, that was the very latest at which time began to run against a claimant, and therefore against James Hardie.[126] As the judge correctly held, however, each claimant must have had s 5(1A) knowledge no later than when the writ for that claimant was filed.
209 The judge then concluded that James Hardie's right to seek contribution against CSR in respect of damage suffered by any individual claimant became barred under s 24(4)(a)(i) if:
(a) the claimant's writ against SECV was filed on or before 4 November 2002, and James Hardie had not commenced its contribution claim before the expiry of six years from that filing date; or
(b) the claimant's writ against the SECV was filed on or after 5 November 2002, and James Hardie had not commenced its contribution claim before the expiry of three years from that filing date.[127]
210 It may be observed that these conclusions result in there being a three-year time limit for all claimants' proceedings filed on or after 5 November 2002, whereas it is at least as likely as not that a proceeding filed on 5 November 2002 (or very shortly thereafter) is one where s 5(1A) knowledge was acquired by the claimant before 5 November 2002, giving rise to a six-year time limit when one applies the transitional provision (s 39 of the LAA) to which we have referred. We mention this matter for completeness, and note that no party sought to agitate this issue before us. In the circumstances, we are content to proceed as the trial judge proceeded.
211 We turn now to consider whether James Hardie's claims for contribution under the Wrongs Act, in respect of the amounts paid by it relating to individual claimants, were statute barred.
Were the Wrongs Act claims in respect of individual claimants statute barred?
212 On the judge's construction of the 1958 version of s 24(4), all claims made in respect of torts committed before 31 December 1971 were statute barred. Those conclusions now have to be revisited in the light of our conclusion that James Hardie had six years from the date of payment in each case within which to bring such a claim.
213 With respect to each claimant in respect of whom a tort was committed before 31 December 1971, the following table shows the date upon which James Hardie paid contribution and the date upon which a claim for contribution in respect of that claimant was first made in the present proceeding:
214 As can be seen from the above table, in each case where the judge held that the claim for contribution under the 1958 version of the Wrongs Act was barred, on our construction each claim was within time.
215 In respect of torts committed after 31 December 1971, as will be recalled, we have agreed with the judge's construction of the limitation provisions that apply to them. The judge's conclusions that all of the relevant claimants, except Mr Benjamin and Mr Johnstone, were barred cannot be interfered with.
216 In the result, the conclusions on whether Wrongs Act claims in respect of particular torts were barred or not may be summarised as follows:
Wrongs Act claim
217 Before determining the effect of these conclusions, it is necessary to examine and consider James Hardie's alternative claims for equitable contribution.
Equitable contribution: appeal ground 5 and cross-appeal ground 3
218 Ground 5 and cross-appeal ground 3 concern the question of whether James Hardie was entitled to claim equitable contribution against CSR in addition to, or in the alternative to, the statutory contribution claims made against CSR under the Wrongs Act. The judge concluded that, if a statutory contribution claim was available in respect of a particular claimant's damage, then James Hardie's remedy was confined to the statutory claim.[128] The judge also held, however, that if the statutory claim was not available (for example, because it was statute-barred) then a claim for equitable contribution was available (so long as the other prerequisites for such recovery existed).[129]
5. The learned trial judge erred in holding that:
(a) the equitable right of contribution, in contrast to the right to contribution at law, that would have been recognised before the 1985 amendments to the Wrongs Act was not subsumed within or overtaken by the statutory remedy, which did not cover the whole field of coordinate liabilities, and the equitable right of contribution remained available in situations not reached by the statute; and
(b) in the alternative to the claim for contribution under the Wrongs Act, James Hardie may have a recognisable right of action against CSR based on equitable principles.[130]
220 James Hardie's cross-appeal (ground 3) provides:
The Court erred in concluding[131] that [James Hardie's] claims for contribution based on coordinate liability were only available where no statutory claim for contribution was available.
221 James Hardie's claims for equitable contribution were based upon ss 10 and 12 of the Partnership Act, which relevantly provided:[132]
10 Liability of firm for wrongs
(1) Subject to subsection (2), where by any wrongful act or omission of any partner in a firm other than an incorporated limited partnership acting in the ordinary course of the business of the firm, or with the authority of the partner's co-partners, loss or injury is caused to any person not being a partner of the firm, or any penalty is incurred, the firm is liable therefore to the same extent as the partner so acting or omitting to act.
12 Liability for wrongs joint and several
(1) Every partner in a firm other than an incorporated limited partnership is liable jointly with the partner's co-partners and also severally for everything for which the firm while the partner is a partner therein becomes liable under either of the two last preceding sections.
222 James Hardie's claim was that, by virtue of these sections, James Hardie and CSR, as partners, were jointly liable in relation to amounts paid with respect to the claimants for whom James Hardie had paid contribution to SECV. As was said in Albion Insurance Co Ltd v Government Insurance Office of New South Wales,[133] 'persons who are under coordinate liabilities to make good the one loss (for example, sureties liable to make good the failure to pay the one debt) must share the burden pro rata'.[134] James Hardie pleaded its claim for equitable contribution in the following terms:
(i) James Hardie and CSR were, by operation of sections 10 and 12 of the Partnership Act 1892 (NSW), under a coordinate liability to each Claimant with respect to that Claimant's claim for compensation for the damage suffered by the relevant Exposed Person (to the extent attributable to the relevant Exposed Person's inhalation of asbestos dust and fibre from partnership products);
...
(iii) James Hardie is entitled in equity to equal contribution from CSR towards each JHC Contribution and JHC Defence Cost (to the extent attributable to the relevant Exposed Person's inhalation of asbestos dust and fibre from partnership products).[135]
223 James Hardie's claim for equitable contribution did not depend upon any proof that CSR itself was itself negligent towards a claimant. While the statutory claim for contribution under the provisions of the Wrongs Act depended upon James Hardie and CSR both being liable in negligence to each claimant, the coordinate liability relied upon by James Hardie as the foundation for its claim for equitable contribution stemmed from the combined operation of the negligence of James Hardie and the deemed attribution of liability to CSR under the provisions of the Partnership Act.
224 In his reasons for judgment, the judge recorded the following concessions made by CSR:
As partners at the time of the supply of partnership product, James Hardie and CSR each had coordinate liability to each claimant for his damage to the extent that it was attributable to that exposure; [and]
Aside from limitations, laches and waiver issues, James Hardie is entitled to equitable contribution from CSR in respect of that coordinate liability to the extent it has been discharged by James Hardie.[136]
225 Notwithstanding these concessions, the judge was persuaded to consider and draw his own conclusions on whether James Hardie had available to it a claim for equitable contribution as an alternative to its claim to statutory contribution under the Wrongs Act.[137] Moreover, notwithstanding these apparent concessions, before us the parties contended (in the case of CSR) or accepted (in the case of James Hardie) that this Court should examine the question of whether the right of equitable contribution had been 'subsumed' by the statutory contribution regime, and no longer existed outside that regime. It was contended by the parties that the issue was an important one that could affect other claims between them, and that the question was, in any event, intertwined with the issue raised by ground 3 of James Hardie's cross-appeal.
226 In his reasons for judgment, the judge set out in some detail the history of the action for contribution in law and in equity.[138] It is not necessary to set out that history here, other than to note that the purpose of s 24 of the Wrongs Act, which was originally enacted in s 2 of the Wrongs (Tort-feasors) Act 1949, was to overcome the rule in Merryweather v Nixan,[139] that the common law did not recognise a general right of contribution between joint tortfeasors.[140]
227 In determining the extent (if any) to which the right to claim equitable contribution was subsumed by the statutory contribution regime in the Wrongs Act, the judge placed particular reliance upon the decision of Campbell J in Belan v Casey.[141] In that case, defamation actions brought against two people were successful and they were each ordered to pay damages and costs. All such monies were paid by one of them and, he having died, his executors brought proceedings for contribution towards such payment from the other person pursuant to s 5 of the Law Reform (Miscellaneous Provisions) Act 1946 (NSW) ('NSW Law Reform Act'). A claim for equitable contribution was also made. In dismissing the proceeding, Campbell J held that the claim under s 5 of the NSW Law Reform Act was statute-barred. A question arose as to whether the existence of the statutory right of contribution meant that there could be no claim for equitable contribution in any event.
228 Noting that contribution between tortfeasors was dependent upon the statutory remedy, Campbell J said:
I would accept that the enactment of section 5 Law Reform (Miscellaneous Provisions) Act 1946 makes clear that it is no longer against public policy for there to be contribution between tortfeasors. However, the passing of the statute did not cause any common law right to contribution to arise between tortfeasors.[142]
Prior to the enactment of that provision, his Honour said, equity would not have allowed contribution between tortfeasors. But once it was enacted there was
no reason for equity to object to the allowing of contribution between tortfeasors on any ground of public policy. ... That does not necessarily mean that the way has been cleared for equity to now recognise that contribution between tortfeasors is possible, in accordance with equity's own principles. One reason why there might not be any right of contribution between tortfeasors in accordance with equity's own principles is that equity intervenes only where there is an inadequacy in either the right, or the remedy, created by the common law. It is only the enactment of section 5 of the Law Reform (Miscellaneous Provisions) Act 1946 which has removed the objection of public policy to equity allowing contribution between joint tortfeasors, yet that section has created its own remedy, and that remedy has not been submitted to be inadequate in any way. What occasion is there, then, for equity to change its view about the availability of contribution between joint tortfeasors from that which it applied before section 5 had been enacted?[143]
229 Campbell J noted that the statutory right of contribution apportioned liability amongst tortfeasors in a different way from the method in equity, and continued:
To allow equitable contribution between tortfeasors, and apportion the liability in equity's traditional way, would be to proceed contrary to Parliament's will as expressed in the statute, about how liability between tortfeasors should be apportioned.
These factors which make me pause about whether, today, equity would grant contribution between joint tortfeasors do not apply to a situation where there is one tortfeasor, who seeks contribution from someone who is liable for the same damage as the tortfeasor, but who is not a tortfeasor. Section 5 of the Law Reform (Miscellaneous Provisions) Act does not enable there to be contribution in that situation. Hence, provided other requirements for contribution are present (including the existence of co-ordinate liabilities) the removal, manifested by the enactment of s 5 of the Law Reform (Miscellaneous Provisions) Act of any public policy objection to a tortfeasor being relieved of the consequences of his own wrongdoing means that there might be contribution between a tortfeasor and someone who is not a tortfeasor.[144]
230 The judge in the present case said that he would apply Campbell J's reasoning 'to the situation in which a tortfeasor has a remedy against another tortfeasor'.[145] By way of explanation, his Honour said that he would
confine that person's remedy at law, and in equity in so far as equity seeks to make up any deficiency at law, to the remedy under the statute.[146]
It is this conclusion which is the subject of cross-appeal 3.
But where no remedy exists under the statute, like [Campbell J], I would see no reason why, today, the application of equitable principles upon a co-ordinate liability could not operate to provide a remedy of contribution.[147]
As to whether such a right of contribution was later subsumed in or overtaken by the statutory remedy, I apply the same reasoning used by Campbell J in Belan. That is, so far as the law is concerned, the statute did provide the exclusive remedy. However, so far as equity is concerned, because the pre-1985 statutory remedy did not purport to cover the whole field of coordinate liabilities, the equitable right of contribution remained available in situations not reached by the statute (so long as other prerequisites for recovery existed).
In conclusion, I accept James Hardie's proposition that, in the alternative to its claim against CSR and Bradford under the Wrongs Act for contribution, it also has a recognisable right of action against CSR based upon equitable principles.[148]
It is these conclusions that are the subject of CSR's ground 5.
232 In relation to Belan, two points may be made. First, Belan is distinguishable on the basis that the claim for equitable contribution there under consideration was a claim by one tortfeasor against another tortfeasor, in the latter's capacity as such. In the present case, by contrast, James Hardie's claim for equitable contribution against CSR is not made against CSR as a tortfeasor. Secondly, what Campbell J said on this topic was, in any event, obiter, as his Honour did not ultimately decide whether any equitable right of contribution existed between joint tortfeasors. Instead, he assumed that such a right existed but concluded that the claim for equitable contribution was statute barred by analogy.[149]
233 The basic concept of contribution was accepted by both law and equity as one of natural justice, expressed by ensuring equality between persons obliged in respect of a common obligation.[150] The basic principle is that 'persons who are under co-ordinate liabilities to make good the one loss ... must share the burden pro rata'.[151] It is essential that there be coordinate liabilities, but such liabilities arise in a variety of circumstances, including where the obligation of each of two co-obligors has a different source, such as statute and contract.[152]
234 It is unnecessary for present purposes to decide whether joint tortfeasors should be viewed as having coordinate liabilities for this purpose.[153] As we have pointed out, James Hardie's claim for equitable contribution rests on CSR's coordinate liability as partner, not on any assertion of tortious liability.
235 There is no reason, in our view, why a party with a right to claim equitable contribution against a co-obligor should lose that right simply because that party also has a right to claim statutory contribution against the same defendant upon the basis that it is a tortfeasor (wrongdoer). It would be curious, if not anomalous, to think that a party liable to pay equitable contribution of say, 50 per cent, might defend that claim by relying upon its own wrongdoing and asserting that it is a tortfeasor against whom a just and equitable amount of statutory contribution might be, say, 10 per cent. Such an approach would allow a wrongdoer to avail itself of a defence that would not be open to a party that might be described as a mere co-obligor who has not engaged in the relevant wrongdoing. The better view is that a party with a right to claim equitable contribution against another party in one capacity, and a right to claim statutory contribution against that same party in another capacity, can maintain both claims, subject to making an appropriate election as to which remedy it will ultimately seek to enforce.
236 It follows that CSR's ground 5 must fail and James Hardie's cross-appeal ground 3 must succeed. With respect to each claimant, therefore, James Hardie had an entitlement both to claim equitable contribution and to claim statutory contribution under s 24 of the Wrongs Act. The statutory cause of action did not subsume James Hardie's entitlements to equitable contribution. But, in a case where the two claims were available, James Hardie would be required to make an election. James Hardie conceded that this was so, and has said that it would elect (and elects) to take judgment against CSR on the basis of coordinate liability. Accordingly, it was submitted that in each case judgment should be entered against CSR alone (not Bradford).[154]
237 Cross-appeal grounds 1 and 2 concern the issue of laches. The judge concluded that the defence of laches was made out in relation to the claims for equitable contribution in relation to Mr Reid and Mr Preston. Cross-appeal grounds 1 and 2 provide:
238 The judge concluded that the claim for equitable contribution arising between two partners, where one has discharged a tortious obligation to which both were exposed, thereby conferring a benefit upon the one who has not paid, corresponded to an action maintainable at law.[157] After a detailed review of authority, his Honour held that the equitable claim was 'based upon an implied contract between the partners to contribute equally to partnership liabilities for wrongs'. There is no challenge to that conclusion.
239 It followed, his Honour said, that in accordance with s 5(8) of the LAA he should
apply by analogy the limitation applicable to an action in simple contract or contract implied by law as prescribed by s 5(1)(a) of [the LAA], namely a period of six years from the date [on which the cause of action accrued]'.[158]
As the judge also noted, there was no controversy at trial that, if this were his conclusion, James Hardie's cause of action for equitable contribution accrued on the date when it paid its contribution under the GSAs.[159]
240 The issue at the heart of this ground of the cross-appeal is whether a claim which is the subject of a limitation provision by analogy may nevertheless be defeated by the defence of laches before the statutory time period has run. Plainly, if the time limit under the statute has run, there will be no need to consider the issue of laches. There is no binding authority that decides this question.
241 It is first necessary to understand the nature of the doctrine of laches. As the judge correctly stated, for a defence of laches to be maintained the defendant must demonstrate, first, that there has been unreasonable delay on the part of the plaintiff in prosecuting its claim and, secondly, that as a consequence of that delay the position of the defendant (or, in some cases, a third party) has so altered that it would be unjust for the court to grant the equitable relief sought by the plaintiff.[160]
242 The classic statement of the principles relating to the defence of laches is contained in the advice of the Privy Council in Lindsay Petroleum Co v Hurd, where it is stated:
The doctrine of laches in Courts of Equity is not an arbitrary or a technical doctrine. Where it would be practically unjust to give a remedy, either because the party has, by his conduct done that which might fairly be regarded as equivalent to a waiver of it, or where, by his conduct and neglect he has, though perhaps not waiving that remedy, yet put the other party in a situation in which it would not be reasonable to place him if the remedy were afterwards to be asserted, in either of these cases lapse of time and delay are most material. But in every case if an argument against relief, which otherwise would be just, is founded upon mere delay, that delay of course not amounting to a bar by any statute of limitations, the validity of that defence must be tried upon principles substantially equitable. Two circumstances always important in such cases are the length of the delay and the nature of the acts done during the interval, which might affect either party and cause a balance of justice or injustice in taking the one course or the other, so far as relates to the remedy.[161]
243 That statement of principle was adopted in the subsequent decision of the House of Lords in Erlanger v New Sombrero Phosphate Company, in which Lord Blackburn stated:
I think, from the nature of the inquiry, it must always be a question of more or less, depending on the diligence which might reasonably be required, and the degree of change, which has occurred, whether the balance of justice or injustice is in favour of granting the remedy or withholding it.[162]
244 Those principles have been followed and applied for more than 140 years. In Fysh v Page, Dixon CJ, Webb and Kitto JJ stated:
When the Court is asked to rip up a transaction years after it has been completed the lapse of time itself is one of the elements bearing upon the equities that exist entitling the plaintiff to relief. If a plaintiff establishes prima-facie grounds for relief the question whether he is defeated by delay must itself be governed by the kind of considerations upon which the principles of equity proceed. If the delay means that to grant relief would place the party whose title might otherwise be voidable on equitable grounds in an unreasonable situation, or if, because of change of circumstances, it would give the party claiming relief an unjust advantage or would impose an unfair prejudice on the opposite party, these are matters which may suffice to answer the prima-facie grounds of relief.[163]
245 In similar terms, in Orr v Ford,[164] Deane J described the doctrine of laches as follows:
the phrase refers to circumstances where inaction or standing by (with knowledge) by a plaintiff over a substantial period of time assumes an aggravated character in that it will, if the plaintiff is granted the relief which he seeks, give rise to serious and unfair prejudice to the defendant or a third party. ... The ultimate test effectively remains that enunciated by Lord Selborne LC ... speaking for the Privy Council, in Lindsay Petroleum Co v Hurd, namely, whether the plaintiff has, by his inaction and standing by, placed the defendant or a third party in a situation in which it would be inequitable and unreasonable 'to place him if the remedy were afterwards to be asserted'...
246 Two related points should be noted. First, in order that the defence of laches be made out, it must be demonstrated that the unreasonable delay by the plaintiff has resulted in such prejudice to the defendant that, on balance, it would be inequitable to grant the relief sought by the plaintiff. Secondly, the defence of laches is essentially the product of the very principles upon which a court decides whether or not to grant equitable relief in a particular case. As was stated in Fysh, the question whether a plaintiff is defeated by delay 'must itself be governed by the kind of considerations upon which the principles of equity proceed'.[165]
247 In the present case, it is not suggested that s 5(8) of the LAA, either expressly or by implication, abrogates the defence of laches in the case of a claim for equitable relief which is the subject of a limitation provision in the LAA Act applied by analogy. Given the intimate interconnection of the principles that govern the grant of equitable relief and the concept of laches, clear words would have been required to effect such an abrogation.
248 As noted earlier, there is no binding authority on the question whether an equitable claim, to which a limitation provision applies by analogy, may be barred by a defence of laches before the expiration of the relevant statutory time period. In support of its contention that the doctrine of laches does not apply in such a case, James Hardie relied on a passage in Halsbury's Laws of England, as follows:
The defence of laches is, however, allowed only where there is no statutory bar. If there is a statutory bar operating either expressly or by way of analogy, the claimant is entitled to the full statutory period before his claim becomes unenforceable; and an injunction in aid of a legal right is not barred until the legal right is barred, although laches may be a bar to an interim injunction.[166]
250 The Rochdale Canal case concerned a defence of acquiescence to a claim in equity for an injunction to restrain the defendants from withdrawing water from a canal which belonged to the plaintiffs. The question was whether that defence was made out. The passage in Halsbury appears to rely on the following passage from the judgment of the Vice-Chancellor:
Where one party invades the right of another, that other does not, in general, deprive himself of the right of seeking redress merely because he remains passive: unless, indeed, he continues inactive so long as to bring the case within the purview of the Statute of Limitations.[170]
251 When read in context of the passage of the judgment that follows, it is clear that the Vice-Chancellor was simply referring to the fact that a defence of acquiescence is not made out simply because the injured party has remained passive. Rather, such a defence is only made out where the injured party knew that the defendant was acting in reliance on the plaintiff's silence, so as to entitle the defendant to have the expectation that he could continue to enjoy exercise of the particular right that was in issue.[171]
252 In Re Pauling's Settlement Trusts, the relevant limitation provision applied expressly to the proceeding in question, and the time limit had not expired. Lord Wilberforce said:
There being an express statutory provision, providing a period of limitation of the plaintiffs' claims, there is no room for the equitable doctrine of laches.[172]
Clearly, what his Lordship said has no application to the present case, where the limitation period applies only by analogy.
253 The same may be said of the third authority relied on by Halsbury, namely, the dictum of Lord Wensleydale in Archbold:[173]
So far as laches is a defence, I take it that where there is a Statute of Limitations, the objection of simple laches does not apply until the expiration of the time allowed by the Statute.
254 In response to the cross-appeal, CSR have, in turn, referred to the statement, by way of obiter, made by the English Court of Appeal in P & O Nedlloyd BV v Arab Metals Co [No 2],[174] that there was no reason in principle why 'unjustified delay coupled with an adverse effect of some kind ... should not be capable of providing a defence in the form of laches even before the expiration of the limitation period'.[175]
255 In Gerace v Auzhair Supplies Pty Ltd,[176] however, Meagher JA cast some doubt on the correctness of that statement, at least so far as it applied to an express period of limitation specified in the statute. His Honour said that the Court of Appeal's observation:
may not take sufficient account of the distinction between laches and acquiescence - the latter used in the Ramsden v Dyson sense of standing by when one's rights are being violated. In the first of the early authorities referred to, Rochdale Canal Company v King, there was acquiescence in this sense. In the second, Archbold v Scully, Lord Wensleydale said at 383 that so 'far as laches is a defence ..., the objection of simple laches does not apply until the expiration of the time allowed by the statute. But acquiescence is a different thing; it means more than laches ... but the fact, of simply neglecting to enforce a claim for the period during which the law permits him to delay, without losing this right, I conceive cannot be any equitable bar'.
These two decisions were cited in Halsbury's Laws of England, for the proposition that the 'defence of laches, however, is only allowed where there is no statutory bar. If there is a statutory bar, operating either expressly or by way of analogy, the plaintiff is entitled to the full statutory period before his claim becomes unenforceable'. A narrower proposition, limited to where there is 'an express statutory provision', was approved and applied by Wilberforce J in In Re Pauling's Settlement Trusts and on appeal. Whether the broader statement, which is repeated in Halsbury's Laws of England, remains correct does not need to be decided in this appeal.[177]
256 Finally, in support of ground 1 of the cross-appeal, James Hardie referred to the decision of the High Court in Batistatos v Roads & Traffic Authority of New South Wales.[178] In that case, the High Court was concerned with a personal injury action commenced 29 years after the accident that gave rise to the injuries the subject of the claim. The claim was not statute-barred, because the period of limitation had been suspended during the period in which the plaintiff in the case was under a disability. The New South Wales Court of Appeal nevertheless held that the proceeding should be permanently stayed as an abuse of the process.
257 The High Court upheld that decision, as the lapse of time had been so serious that a fair trial of the action was not possible. Counsel for James Hardie relied on the following passage from the majority judgment:
The appellant in this Court wishes to be freed of the permanent stay upon his actions which was imposed by the Court of Appeal. The causes of action he asserts are given by the common law and are subject to any applicable statutory limitation but not to equitable defences of laches, acquiescence and delay. Those defences, in relation to a suit to establish the existence of a trust of land, were considered by this Court in Orr v Ford. It was accepted by the majority that prejudice occasioned by the loss of evidence as a result of delay by the plaintiff might be raised as part of a defence of laches.
The absence in the Anglo-Australian common law of the importation of such equitable doctrines as laches, acquiescence and delay as defences to legal claims to legal remedies has emphasised the significance of the development of the inherent power with respect to abuse of process to supplement the 'long-stop' barriers imposed by limitation statutes.[179]
258 As counsel acknowledged, the High Court was here concerned with common law claims, not equitable claims. Plainly enough, this passage provides no support for the proposition that the defence of laches is unavailable in response to a claim for equitable, as distinct from common law, relief. As we have already noted, the claim made by James Hardie, based on its coordinate liability with CSR, is based on a different cause of action, and a different set of principles, from the statutory claim for contribution. There is no reason, in principle or otherwise, for the doctrine of laches to be excluded from application to the claim based on the equitable cause of action, simply because James Hardie, at the same time, has sought to assert a statutory claim in addition to it.
259 In summary, the dicta to which we have referred appear to favour the view that the defence of laches may not be available where there is an express statutory provision prescribing a specific period of limitation in respect of the particular equitable cause of action. But those dicta do not assist in deciding whether the defence is inapplicable in a case where, by the doctrine of analogy, a period of limitation is found to apply.
260 As the authorities make clear, the doctrine of laches is part and parcel of the equitable principles that are to be applied where a plaintiff claims equitable relief. It is engaged where there is unreasonable delay in the pursuit of equitable relief, by virtue of which the court deems it not just and equitable to grant the relief sought by the plaintiff.
261 There is no reason in principle, in our view, why the defence should not be available in an appropriate case where, before the expiration of a time limit applicable by the doctrine of analogy, there has been unreasonable delay by the plaintiff in pursuing its rights in equity that has resulted in unfair prejudice to a defendant. In that context, we respectfully endorse the following observation by the trial judge, distinguishing between the defence of waiver and the defence of laches:
In my view, there is logical distinction to be made between type of defence that may be equated with a waiver (sometimes referred to as a release) due to the plaintiff standing by and not enforcing rights, on the one hand, and a defence that identifies a changed circumstance making it unjust that the claim now be maintained as against the defendant, on the other. In relation to the first category, which focuses on the conduct of the plaintiff, limiting the plaintiff to a period less than the full duration of the statutory period seems inconsistent with the very purpose of equity applying the statutory limitation. But, in relation to the second category, which focuses on the effect produced by the delay, given that the doctrine of analogy is the exercise of an equitable principle, so limiting a plaintiff when the delay has wrought some adverse and unjust change to the circumstances of the defendant (or produced an unfair advantage for the plaintiff) does not seem to produce the same inconsistency.[180]
262 For these reasons, we consider that the judge was correct in finding that the defence of laches was available in respect of the equitable claims made by James Hardie against CSR. Because of the nature of the doctrine, however, we would expect that the defence would only apply in an unusual, if not exceptional, case. The events and circumstances with which James Hardie's claims are concerned took place more than 40 years ago. As demonstrated in the next section of these reasons, the period of delay relied on by CSR in support of the defence of laches was but a small proportion of that period. It would be unusual - indeed, surprising - for the delay during that period to have occasioned such prejudice to CSR, over and above the prejudice flowing from the antecedent longer period of delay, for the equitable claim by James Hardie to be barred by laches.
263 James Hardie paid its settlement sum under the GSA in respect of Mr Reid on 9 November 2004. It joined its equitable claim for contribution in respect of Mr Reid into the proceeding on 23 April 2008. From the date when the cause of action first accrued to James Hardie, a period of nearly three and a half years elapsed before it joined its claim for contribution in respect of Mr Reid to the proceeding.
264 In the judge's view, the relevant background circumstances gave context to the three and a half year lapse of time.[181] These circumstances included that Mr Reid first sued SECV in November 2002. The judge described James Hardie as having made a choice to 'delay informing CSR of the existence of the Reid claim'.[182] Complaint was made by James Hardie that there was no evidence given at trial about a relevant period of delay by James Hardie in informing CSR of the existence of any particular claim, or any choice as referred to by the judge.
265 His Honour concluded that there was delay caused by the time taken to join Mr Reid's claim to the proceeding and that this delay 'likely caused some unfair disadvantage to CSR and a corresponding advantage to James Hardie'.[183] He said:
Having made the choice that it made, any delay in informing CSR of the existence of the Reid claim, the proposal to settle it and the fact of settling it, and then joining it to the proceeding was apt to prejudice CSR's ability to undertake its own investigations of the circumstances of the injury.
A number of circumstances could combine to give rise to that prejudice if there should be further, unreasonable delay, namely: the long latency period between exposure and illness created a situation of urgency for the preservation of whatever relevant factual material might still exist; the nature of the condition meant that the time frame within which to obtain relevant medical and other information directly from the claimant was limited; the 'control' over such other information that could be obtained was, in substance, exercised by James Hardie under its GSA entitlements; and the choice James Hardie made as to the omnibus form of the litigation extended the delay between issue and trial.
Once a claim was settled by the SECV attracting the operation of the GSAs, James Hardie ought to have acted swiftly to make its payment and join the claim to the proceeding. In this particular case the cumulative delays of nearly six years between the SECV settlement and the JHC payment and then the JHC payment to the commencement of this proceeding has added an unacceptable and unreasonable additional period of time before this matter has come to trial. All of the relevant time frames in this case are longer than those relating to Mr Alexander, including those over which I presume James Hardie had a degree of control. The length of the delays of themselves call for some explanation. But, without explanation, nearly six years elapsed from settlement and nearly 3½ years elapsed from contribution before the claim was brought. During that time it may reasonably be inferred that some evidence which might have been gathered to assist CSR in defending the claim would have either been lost or made less readily accessible.
There is an air of artificiality in James Hardie's insistence that CSR should identify with greater specificity the evidence that was lost, or the precise way in which it was prejudiced, or the actual period of 'excessive' delay. These requirements call for CSR to identify the very things it could not know by reason of the position in which it was placed by the long latency period of the disease and the choices James Hardie made in the arrangement under which it settled claims.[184]
266 James Hardie submitted that this reasoning was not sufficient to make out a defence of laches. While prejudice by the effluxion of time may be presumed, the circumstances of Mr Reid's cause of action were very old. It was submitted that nothing occurred in the relevant three and a half year period that was sufficient to amount to laches. Moreover, it was submitted, the use by the judge of expressions such as 'apt to prejudice'[185] and 'likely caused some unfair disadvantage'[186] set the bar too low when considering what actual detriment was likely to have been suffered as a result of a delay between November 2004 and April 2008. This was said to be particularly so in circumstances where the relevant events involving Mr Reid's claim went back to 1964.
267 In Orr, the majority discussed the question of prejudice in relation to the defence of laches as follows:
The substance of the respondents' case in relation to laches was that prejudice in defending the appellant's claim by reason that evidence which might earlier have been available was lost to them. Prejudice is a consideration properly to be taken into account in relation to laches, although the respondents were not able to point to any authority where such a consideration had defeated the claim of a beneficiary to specific property the subject of an express trust. However, where entitlement depends on factual matters which are fairly open to dispute we see no reason why prejudice occasioned by the loss of evidence as a result of delay on the part of the claimant might not be raised in answer to such a claim.
The question of prejudice resulting from unavailability of evidence necessarily involves some degree of speculation, but it is not a question of pure speculation. The issue is not whether evidence may have been lost but whether evidence which may have cast a different complexion on the matter has been lost. Thus in Crago v McIntyre a defence of laches was successful because a different conclusion may have been reached 'if all of the witnesses, including the doctors, who could have given firsthand accounts of the plaintiff's behaviour, and of other relevant circumstances, had been available to be called as witnesses'.
In the present case the witnesses whose evidence was said to have been lost were the appellant's parents-in-law, Dr Stone and Mrs Nickerson. The loss of the evidence of the appellant's parents-in-law occurred prior to December 1977, the time at which the respondents assert that the appellant knew that his interest was impugned and whose delay thereafter is said to constitute laches. The loss of this evidence is therefore not a matter to be taken into account.[187]
268 CSR did not identify any evidence which had been lost between the time at which James Hardie's cause of action accrued and the time at which James Hardie joined the relevant claim to the proceeding, and which might have cast a different complexion on matters. Moreover, notwithstanding the judge's finding that there had been a delay by James Hardie in informing CSR of the existence of the Reid claim,[188] there was no evidence in fact as to when CSR was first informed of the claim.[189]
269 With respect, we are unable to conclude that the defence of laches was made out with respect to Mr Reid's claim. It seems to us that this was a case more akin to that described in Archbold[190] as one of mere delay. It is largely a matter of speculation whether there was any detriment (or sufficient detriment) suffered by CSR as a result of the lapse of time between the accrual of James Hardie's cause of action and the joinder of its claim for contribution in the present proceeding. Certainly, the judge did not identify any specific fact or circumstance that occurred in the relevant period (November 2004 to April 2008) that resulted in prejudice to CSR. Cross-appeal ground 2 must therefore succeed with respect to Mr Reid's claim. We turn now to consider cross-appeal ground 2 with respect to Mr Preston's claim.
270 James Hardie paid its settlement under the GSA in respect of Mr Preston on 24 February 1998. It joined its equitable claim for contribution to this proceeding against CSR on 6 May 2003. From the date when the cause of action first accrued to James Hardie, a period of five and a quarter years elapsed before it joined its claim for contribution in respect of Mr Preston.
271 As with the Reid claim, the judge set out the background facts which he considered provided context for the laches issue.[191] Adopting a very similar reasoning process, the judge came to the conclusion that the delay caused by the time taken to join the claim to the proceeding 'has likely caused some unfair disadvantage to CSR and corresponding advantage to James Hardie'.[192]
272 For the same reasons as we have given in respect of the Reid claim, we have respectfully concluded that the judge erred in holding that the defence of laches was made out in relation to the Preston claim. As with the Reid claim, there was no evidence about when CSR was first informed of the existence of the Preston claim.[193] And, as with the Reid claim, CSR did not identify any potentially relevant evidence which had been lost between the time when James Hardie's cause of action accrued and the time when James Hardie joined the relevant claim to the proceeding.[194]
273 There are no additional or different facts that occurred after James Hardie's cause of action first accrued which might differentiate the Preston claim from the Reid claim, or indeed from the claims in respect of other claimants. His Honour's conclusions about laches appear to have been chiefly based on the fact that longer periods of time elapsed in relation to Mr Reid's claim and Mr Preston's claim than in relation to those claims where the judge held that the defence of laches was not made out. Ground 2 must also be upheld in relation to the Preston claim.
The Alexander, Reid, Maguire and Preston claims
274 In respect of James Hardie's claims under the Wrongs Act, we concluded earlier that the pre-31 December 1971 claims in respect of Mr Alexander, Mr Reid, Mr McGuire and Mr Preston were not barred but that the post-31 December 1971 claims were barred. We have now concluded that James Hardie has available to it alternative claims for equitable contribution in respect of Mr Alexander, Mr Reid, Mr McGuire and Mr Preston, and that CSR has failed to establish the defence of laches in respect of any of those claims. As mentioned earlier, James Hardie has said in relation to the claims for equitable contribution in the Alexander, Reid, McGuire and Preston matters that it will elect to take judgment against CSR alone (and not Bradford). As a result, it is no longer necessary for us to consider the consequences of the post-31 December 1971 Wrongs Act claims being statute-barred.
275 That said, we propose to state our conclusions in respect of the Wrongs Act claims relating to the four claimants, Mr Alexander, Mr Reid, Mr McGuire and Mr Preston. We will do so because the cases involving the remaining 196 claimants may include instances where the pre-31 December 1971 Wrongs Act claim is not barred but the post-31 December 1971 Wrongs Act claim is barred and a defence of laches is made out in respect of the alternative claim for equitable contribution. What we say in this section of our judgment is intended to give the parties guidance in respect of any such claim.
276 On the assumption that the pre-31 December 1971 Wrongs Act claim was not statute-barred and the post-31 December 1971 Wrongs Act claim was statute-barred, the parties submitted that the appropriate amount to be paid pursuant to the Wrongs Act in respect of the Alexander, Reid, McGuire and Preston claims was as follows:
277 The figures submitted by CSR were expressed to be 'exclusive of defence costs'. This was in accordance with the position taken by James Hardie at trial that it made no claim in respect of defence costs in relation to its Wrongs Act claims.[195] On the other hand, the figures submitted by James Hardie and set out in the table above appear to contain defence costs. Having regard to the position James Hardie took at trial (correctly, in our view), in any calculation under the Wrongs Act the relevant defence costs need to be disregarded.
278 In making its submissions as to the appropriate figures under the Wrongs Act, CSR re-agitated some of its submissions on evidential lacunae and the other difficulties it submitted were associated with any finding in favour of James Hardie in this proceeding. Those issues have now been resolved against CSR and the appropriate figures for contribution under the Wrongs Act must be calculated accordingly.
279 James Hardie submitted that a 'time on risk' approach to the pre-31 December 1971 and post-31 December 1971 issue was appropriate, having regard to the state of the evidence in this proceeding. That is, James Hardie sought to apportion the figure for contribution arrived at in relation to the relevant equitable contribution claim and then to apportion it by reference to the number of relevant days prior to 31 December 1971 and after 31 December 1971. Subject to what we say in the following paragraphs, we agree generally with this approach. While this approach might be described as broad brush, the evidence as a whole does not admit of a more precise analysis. Indeed, CSR was content to submit an alternative approach which it described as 'rough and ready'.
280 James Hardie submitted that, in respect of some claimants, its entitlement to contribution on a time on risk calculation should be increased where the post-31 December 1971 exposure continued past May 1974 (being the agreed date upon which the partnership ceased manufacturing Hardie-BI product). The basis for this submission was that any exposure post-May 1974 would be 'confined to in situ product only'. While that might be so, we do not accept that, on the evidence, that is an appropriate basis for any increase in the amount that would otherwise be awarded by performing a calculation of the kind to which we have referred.
281 James Hardie's submission with respect to the Alexander claim was premised upon an acceptance of its submission that, taking account of the error identified in CSR's ground 8, contribution in respect of Alexander should nevertheless amount to $20,000. We have already determined that that figure should be $12,500. Accordingly, any claim for contribution under the Wrongs Act must be calculated in the way we have suggested on a figure of $12,500, less any amount in that figure for defence costs, not on a starting figure of $20,000.
282 The judge determined that the claims in respect of Mr Reid and Mr Preston were statute-barred and that defences of laches were established. Notwithstanding those conclusions, the judge calculated amounts that would be payable in respect of Mr Reid and Mr Preston had a claim for equitable contribution been made out. The amount calculated by the judge in respect of Mr Reid was $77,000. In respect of Mr Preston, it was $33,000. No party submitted that there was any error by the judge in these calculations.
283 Applying the time on risk approach, set out above in respect of the Reid, McGuire and Preston claims, produces figures of $36,575, $18,152.01 and $14,190 respectively. Again, we reject the increase sought by James Hardie (only in the case of Mr Reid this time) on the basis that post-31 December 1971 exposure continued past May 1974. Equally, any part of those figures that contains an allowance for defence costs must be removed. As the amounts of defence costs are known, we assume that their removal from these figures ($36,575, $18,152.01 and $14,190) would be a matter of simple arithmetic to be performed by the parties, if necessary.
Conclusions in respect of the grounds of appeal and cross-appeal
284 Before stating our conclusions in respect of each contribution claim, it is convenient now to summarise our conclusions in respect of CSR's grounds of appeal and James Hardie's grounds of cross-appeal.
285 With respect to CSR's grounds of appeal and James Hardie's grounds of cross-appeal, we have reached the following conclusions:
(a) the judge did not err in admitting the asbestos exposure histories contained in medical reports relating to individual claimants. Accordingly, CSR's grounds 1 and 2 fail;
(b) the judge did not err in drawing the inferences he drew relating to the claimants whom he found were exposed to Hardie-BI asbestos product. Nor did he err in concluding that those exposures were a cause of the injuries suffered by those claimants. Accordingly, CSR's grounds 3 and 4 fail;
(c) the judge did not err in concluding that the claimants Mr Johnstone, Mr Benjamin, Mr Alexander, Mr Kracht, Mr McGuire and Mr Preston were exposed to Hardie-BI product and that that exposure was a cause of their injuries. Accordingly, CSR's grounds 6 to 10 fail - except ground 8 (relating to Alexander) to a limited extent. In respect of the Alexander claim, the judge erred in finding that there were different causal potencies for different types of asbestos in respect of asbestosis. The correction of that error means that the amount of contribution awarded by the judge in respect of Mr Alexander ($35,000) should be reduced to $12,500;
(d) the judge did not err when he concluded that the equitable right of contribution was not subsumed within or overtaken by the statutory remedy provided by s 24 of the Wrongs Act. Accordingly, CSR's ground 5 fails. However the judge erred when he concluded that claims for equitable contribution were only available where no statutory claim for contribution was available. Accordingly, James Hardie's cross-appeal ground 3 succeeds and James Hardie has a claim for equitable contribution in respect of every claimant who was relevantly exposed to Hardie-BI product and who suffered injury as a result;
(e) the judge did not err in his conclusion that the defence of laches is available in claims for equitable contribution notwithstanding the existence of a statutory limitation period applied by analogy. Accordingly, James Hardie's cross-appeal ground 1 fails; and
(f) the judge erred in concluding that the equitable contribution claims in respect of Mr Reid and Mr Preston were defeated by laches. In those cases, the defence of laches was not made out. Accordingly, James Hardie's cross-appeal ground 2 succeeds.
286 As a result of these conclusions, James Hardie is entitled to recover equitable contribution in respect of Mr Alexander, Mr Benjamin, Mr Reid, Mr Johnstone, Mr Kracht, Mr McGuire and Mr Preston. In respect of Mr Alexander, the amount assessed will be reduced from the judge's figure to $12,500. In respect of the other claimants, the amount of contribution is the amount assessed by the judge.
287 Having regard to the conclusions just set out, our conclusions with respect to James Hardie's cross-appeal grounds 4 and 5 cannot affect the ultimate outcome of this appeal. Nevertheless, we summarise our conclusions with respect to those grounds as follows:
(a) the judge erred in his construction of the 1958 version of s 24(4) of the Wrongs Act. As a result, James Hardie's cross-appeal ground 4 is made out and the judge's conclusions that each of the pre-31 December 1971 claims was statute-barred should be set aside and replaced with a conclusion that those claims were not statute-barred; and
(b) the judge did not err in his construction of the 1972 version of s 24(4) of the Wrongs Act. Accordingly, James Hardie's cross-appeal ground 5 fails.
Conclusions in respect of each contribution claim
288 The judge ordered CSR to pay contribution in respect of five claimants (Mr Alexander, Mr Benjamin, Mr Johnstone, Mr Kracht and Mr McGuire). In addition to the general complaints made in CSR's grounds 3 and 4, those claimants were each the subject of a separate ground of appeal directed to the judge's conclusions about exposure and causation in relation to them (grounds 6 to 10). Obviously, there were no separate grounds of appeal in relation to the claimants Mr Reid and Mr Preston, in respect of whom no contribution was ordered.
289 More importantly, there was no notice of contention by CSR alleging that, in the event that one or more of James Hardie's grounds of cross-appeal in relation to Mr Reid or Mr Preston succeeded, CSR would seek to support the conclusion that no contribution was payable in respect of those claims on the ground that the judge should have found against them on the issues of exposure and/or causation. Nevertheless, we have examined the judge's findings on exposure and causation in relation to Mr Reid and Mr Preston by reference to the arguments advanced by CSR in support of its grounds 3 and 4. Having conducted that analysis, we have concluded, for the reasons already given, that the judge did not err in his findings with respect to exposure and causation in relation to the Reid and Preston claims.
290 While the judge determined that no amount was payable by CSR in respect of the Reid and Preston claims, because the claims under the Wrongs Act were statute-barred, and the defence of laches was made out in relation to the equitable contribution claims, he went on to assess the amount of contribution that would be payable if he were wrong. No party suggested in this Court that the judge's assessments were erroneous or that this Court should not award the amounts found by the judge if we concluded that a relevant claim was made out. In light of this and the conclusion we have reached with respect to the Reid and Preston claims, we propose to order contribution in relation to those claims in the amounts calculated by the judge: $77,000 in respect of Mr Reid;[196] and $33,000 in respect of Mr Preston.[197]
291 It is now possible to state our conclusions in relation to each claim for contribution. The table below sets out our conclusions:
Wrongs Act claim
292 It follows that CSR should have leave to appeal and its appeal should be allowed, to give effect to our conclusion in respect of ground 8. James Hardie should have leave to cross-appeal and its cross-appeal should be allowed, to give effect to our conclusions in respect of cross-appeal grounds 2, 3 and 4. While James Hardie submitted that CSR should not have leave to appeal because its grounds did not raise points of principle, we reject that submission. The judge's orders were final orders. CSR having enjoyed the limited success it has had with respect to ground 8, we see no reason why the error should not be corrected by this Court.
293 Finally, we wish to record our commendation of the judge's conduct of the trial and the high quality of his reasons for judgment. This was a massive exercise at the trial level. A number of the issues which his Honour had to determine were not the subject of any previous binding authority. If we may say so with respect, the quality and clarity of the judge's reasons for judgment are exemplary. It is because of that quality and clarity that we have been able more easily to deal with the issues raised before us. Moreover, it is to be remembered that a large number of issues which fell to be resolved by the judge were not the subject of any challenge before us.
[1] The other products were either ATI products the same as Hardie-BI products but produced by James Hardie alone before the partnership period, or other ATI products containing asbestos (such as rope, cord or limpet) that were not produced by James Hardie before the partnership period or by Hardie-BI.
[2] Amaca Pty Ltd v CSR Ltd & Anor [2015] VSC 582 ('Reasons').
[11] Ibid [844]. The table in the judge's reasons also contained some alternative conclusions in the event that the judge was held to be wrong in some of his primary conclusions. Those alternative conclusions have been omitted here.
[12] Mr Alexander, Mr Benjamin, Mr Johnstone, Mr Kracht and Mr McGuire.
[13] The Wrongs Act 1972 relevantly amended s 24(4) of the Wrongs Act and applied to torts committed on or after 1 January 1972. See further discussion at [192]-[193] below.
[16] [1961] NZPoliceLawRp 24; [1962] NZLR 334 ('Naidanovici').
[17] (1973) 6 SASR 200, 202-3 ('Gillespie').
[18] [2015] SASC 180, [22]-[24] ('Keogh').
[19] [1975] VicRp 74; [1975] VR 741 ('Alexander and Taylor').
[27] Ibid 749 (Young CJ, Newton and Kaye JJ).
[32] Ibid 598 [6] (Redlich JA, with whom Vincent and Kellam JJA agreed)(citation omitted).
[39] Cf Normandale v Rankine (1972) 4 SASR 205, 207 (Walters J).
[47] See DPP v Curran [Ruling No 2] [2011] VSC 280; Spalding v Radio Canberra Pty Ltd [2009] ACTSC 26; (2009) 224 FLR 440.
[48] Law Reform Commission, Evidence (Interim), Report No 26 (1985) 340 [615].
[51] National Builders Group IP Holdings v ACN 092 675 165 Pty Ltd (in liq) [2015] VSCA 260 [45]-[46].
[54] Ibid [145], [494], [549]-[554], [588], [593], [599], [601], [636], [649], [720]-[721], [750], [753]-[754], [762]-[764].
[56] Ibid [601], [617]-[618], [649], [733], [746], [764], [790].
[68] Ibid [481]-[483] (emphasis in original) (citations omitted).
[72] Ibid [572]-[584] (citations omitted).
[77] Ibid [601]-[602] (citations omitted).
[80] Warren v Coombes [1979] HCA 9; (1979) 142 CLR 531.
[81] Box Hill Institute of TAFE v Johnson [2015] VSCA 245 [37]-[38] (citations omitted).
[82] [2003] HCA 22; (2003) 214 CLR 118, 125-126 [23] (citations omitted).
[83] [2016] HCA 22; (2016) 90 ALJR 679, 686-687 [43] (citations omitted) ('Robinson Helicopter').
[85] Ibid [15]-[16], [145], [494], [549]-[554], [588], [593], [599], [601], [636], [649], [665], [720]-[721], [746], [750], [753]-[754], [762]-[764], [773]-[775].
[91] [2010] HCA 5; (2010) 240 CLR 111 ('Amaca v Ellis').
[92] Reasons [723]-[733] (citations omitted).
[93] Amaca v Ellis [2010] HCA 5; (2010) 240 CLR 111, 129 [38].
[97] See also Robinson Helicopter [2016] HCA 22; (2016) 90 ALJR 679, 694 [86] where the High Court said:
Although proof of causation may sometimes entail the robust, pragmatic drawing of inferences, especially where there are a number of possible causes and there is difficulty in ascertaining which of them was the cause of damage suffered, proof of causation still requires proof on the balance of probabilities that the alleged breach of duty was the cause of the damage suffered.
[98] Reasons [587], [588], [599], [601].
[107] [1959] VicRp 26; [1959] VR 175 ('Allman').
[108] The provision relied on was s 2(4) of the Wrongs (Tort-feasors) Act 1949, which was in identical terms to the subsequently enacted s 24(4) of the Wrongs Act.
[109] Allman [1959] VicRp 26; [1959] VR 175, 177.
[112] Ibid (emphasis added) (citations omitted).
[114] [1994] VicRp 18; [1994] 1 VR 259 ('SECV v Fooks').
[115] While the present day contribution provisions contained in the Wrongs Act are different from the provisions originally enacted and later amended by the 1972 Act, those provisions have no application in the present case because s 24AD(3) of the Wrongs Act provides that the contribution provisions immediately in force before the commencement of the Wrongs (Contribution) Act 1985 continue to apply with respect to torts committed before the commencement of that Act (12 February 1986).
[116] Reasons [301]. See also Buttigieg v Universal Terminal & Stevedoring Corporation [1972] VicRp 72; [1972] VR 626, 629.
[117] Remembering that the contribution provisions in the Wrongs Act changed again on 12 February 1986.
[122] SECV v Fooks [1994] VicRp 18; [1994] 1 VR 259, 266-7 (with whom Brooking J (as his Honour then was) and Smith J agreed).
[129] Ibid [445]. An example of a case where the fact that the statutory claim was barred resulted in the claim for equitable contribution being permitted can be found at Reasons [606]-[607]. An example of a case where the existence of a statutory claim that was not barred was held to preclude a claim for equitable contribution can be found at Reasons [653]-[654].
[132] Cf Partnership Act 1958 (Vic) ss 14(1), 16(1).
[133] [1969] HCA 55; (1969) 121 CLR 342 ('Albion Insurance').
[134] Ibid 350 (Kitto J). See, also, Burke v LFOT Pty Ltd [2002] HCA 17; (2002) 209 CLR 282 ('Burke'); HIH Claims Support Ltd v Insurance Australia Ltd [2011] HCA 31; (2011) 244 CLR 72 ('HIH Claims Support').
[140] See, eg, James Hardie & Co Pty Ltd v Seltsam Pty Ltd [1998] HCA 78; (1998) 196 CLR 53.
[141] [2003] NSWSC 159; (2003) 57 NSWLR 670 ('Belan').
[145] Reasons [431] (emphasis in original).
[149] Belan [2003] NSWSC 159; (2003) 57 NSWLR 670, 711 [143], 713 [151].
[150] HIH Claims Support [2011] HCA 31; (2011) 244 CLR 72, 87 [36], citing Albion Insurance [1969] HCA 55; (1969) 121 CLR 342, 350.
[152] HIH Claims Support [2011] HCA 31; (2011) 244 CLR 72, 88 [38]-[39]; Burke [2002] HCA 17; (2002) 209 CLR 282, 292 [14].
[153] See Burke [2002] HCA 17; (2002) 209 CLR 282, 293-4 [16]-[19].
[154] See James Hardie's amended written case for the cross-appeal, [27].
[161] [1874] UKLawRpPC 1; (1874) LR 5 PC 221, 239-40 (emphasis added).
[162] (1878) 3 AC 1218, 1279.
[163] [1956] HCA 13; (1956) 96 CLR 233, 243 ('Fysh').
[164] [1989] HCA 4; (1989) 167 CLR 316, 341 ('Orr') (citations omitted).
[165] [1956] HCA 13; (1956) 96 CLR 233, 243.
[166] Lord Mackay of Clashfern Halsbury's Laws of England (LexisNexis, 4th ed, 2003), vol 16(2), 394-5 [910] ('Halsbury').
[167] [1861] EngR 510; (1861) 9 HL Cas 360, 383 ('Archbold').
[168] [1962] 1 WLR 86 ('Re Pauling's Settlement Trusts').
[169] [1851] EngR 777; (1851) 2 Sim NS 78; 61 ER 270 ('Rochdale Canal').
[172] [1962] 1 WLR 86, 115.
[173] [1861] EngR 510; (1861) 9 HL Cas 360, 383, 778.
[174] [2006] EWCA Civ 1717; [2007] 1 WLR 2288 ('P & O Nedlloyd').
[176] [2014] NSWCA 181; (2014) 87 NSWLR 435 ('Gerace').
[177] Ibid 435, 445-446 [29]-[30] (citations omitted).
[187] [1989] HCA 4; (1989) 167 CLR 316, 330-1 (Wilson, Toohey and Gaudron JJ) (emphasis added) (citations omitted).
[189] In making that statement, we have not overlooked (although we have not relied upon) a footnote in James Hardie's amended written case on the cross-appeal in which it is stated:
In fact, evidence of this was led in the later application concerning interest, which demonstrated that the claims were notified to CSR's lawyers soon after payment was made, albeit that some time then passed before they were formally incorporated into the contribution proceedings. That evidence was not before his Honour but it illustrates the limitations of the case put to him as a basis for finding prejudice.
[192] Ibid [839]. See also Reasons [835]-[838]. But cf [700] and [696]-[699] in relation to the Reid claim.
[194] Cf Orr [1989] HCA 4; (1989) 167 CLR 316, 330.
CSR Limited
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(1989) 167 CLR 316
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(2006) 226 CLR 256
(1956) 96 CLR 233